Mark Craven v Forrest Fresh Foods Limited — 2023

The tribunal found that Mark Craven was an employee of Forrest Fresh Foods Limited despite also being a shareholder and director. It accepted that a statement of main terms dated 24 August 2015 existed and found, on the balance of probabilities, that the claimant had been provided with and had signed a copy of the employment contract. The tribunal also relied on the claimant's July 2022 grievance email, which asked for a copy of the contract he said he had signed and returned, and on evidence that he and Jamie Kennedy were given new contracts in August 2015.

The tribunal rejected the respondent's argument that the claimant ceased to be an employee altogether when he became a director, but it also rejected the claimant's case that all sums were payable to him as an employee under the 2015 contract. It found that, over time, the claimant had agreed or at least acquiesced in a payment structure based on his position as a director, and that once he was removed as a director in June 2022 he was not entitled to further monthly payments from the respondent. On that basis, the PAYE earnings claim failed.

The sick pay claim also failed. The tribunal noted that the August 2015 contract stated there was no contractual sickness or injury payments scheme in addition to SSP, and it found that the claimant was not entitled to SSP in the relevant period after his removal as a director. The bonus claim failed because, although there was an agreement at some stage that a 5% bonus would be payable if net profit reached £700,000, the company's audited accounts for the year ending 30 April 2022 showed net profit of £563,184. The tribunal treated net profit in its ordinary sense and found the threshold had not been met.

The tribunal dismissed the claim for unpaid instalments to HMRC, finding that the arrangement was a payment mechanism to help the claimant meet his own tax liability, most likely through a drawdown from the directors' loan account, rather than wages payable by the respondent. It also dismissed the claim for written particulars of employment. The claim for pension payments was withdrawn by consent and not dismissed. Because no award was made, the tribunal did not need to determine the ACAS Code uplift issue.