Mr. D Tessaro v JJ Comms (UK) Limited (In Creditors Voluntary Liquidation) – R1 The Secretary of State for Business, Energy & Industrial Strategy – R2 — 2023

The tribunal considered whether Mr D Tessaro was an employee of JJ Comms (UK) Limited for the purposes of section 230 ERA 1996 at the date the company entered creditors voluntary liquidation on 17 June 2022. It accepted that he had been the sole director and sole shareholder, had no written contract of employment, did not report to any person or board, and was not supervised in his work. The tribunal also found that his hours varied, that he worked more than 48 hours when the business was busy, and that the evidence showed a tax-efficient mix of purported wages and dividends rather than a conventional employment arrangement.

Applying the statutory definition and the authorities it cited, including Ready Mixed Concrete, Autoclenz and the irreducible minimum of control, personal service and mutuality of obligation, the tribunal held that the company did not control how he performed his work, that there was no requirement for him to provide personal service, and that the evidence did not show mutual obligations to provide and accept work. It also found no oral or implied contract of employment. The tribunal concluded that the claimant had not met the burden of proving employee status and was not an employee within section 230 ERA 1996.

Because the claimant was not an employee, the tribunal held that he was not entitled to a statutory redundancy payment under section 135 ERA 1996 and dismissed the claim. The reasons record that the Redundancy Payments Service had rejected his application on 17 August 2022, and that the tribunal’s conclusion was based on the overall reality of the relationship rather than the existence of pay slips alone.