In person and supported by his wife Mrs B McBrearty For the v MAC Services International Ltd (in Liquidation) and 1 other — 2023

The sole issue before the tribunal was whether Mr D McBrearty was an employee of the first respondent for the purposes of s.230 ERA 1996 at the point the company entered creditors' voluntary liquidation on 12 April 2023. The Secretary of State had rejected his National Insurance Fund claims on the basis that he was not an employee. A letter from the joint liquidator dated 17 April 2023 had said he was made redundant as a director on 29 March 2023, but the tribunal treated that wording as ambiguous and not conclusive on employment status.

The tribunal accepted that Mr McBrearty was the majority shareholder and sole director, but held that those facts did not prevent employee status. It found that the absence of a written contract was not determinative in the context of a small family business. The tribunal noted that his involvement had reduced over time, that he said he had not taken dividends for six or seven years, and that he had been paid a regular monthly salary of £1,000 for at least six months before liquidation, with payslips and a P60 showing PAYE deductions.

Applying the Ready Mixed Concrete factors and the authorities it cited, including Flemming v SOS and Rajah v Secretary of State, the tribunal concluded that the claimant continued to provide services with sufficient personal service and mutuality of obligation to amount to a continuing employment relationship. It also rejected the Secretary of State's minimum-wage point, accepting that the claimant's earlier reference to a 40-hour week was erroneous and that he had in fact worked substantially fewer hours.

The tribunal therefore found that Mr McBrearty was an employee when the first respondent entered insolvency and that he had prima facie entitlement to the various prescribed payments from the National Insurance Fund, including statutory redundancy, arrears of pay, holiday pay and compensation for loss of notice. The judgment did not quantify those sums; it left calculation of the claimant's entitlements to the Secretary of State.