Case 2409436/2023 · Employment Tribunal

(1) Mr M Rose (2) Mr E O’Dwyer-Smith v English in Manchester and 1 other — 2025

Case reference: 2409436/2023
Decision date: 20 February 2025
Jurisdiction: England & Wales
Judge: Employment Judge Ainscough Representation

Indexed: 17 May 2026

Parties

3 named

Claimant

(1) Mr M Rose (2) Mr E O’Dwyer-Smith

Respondents

Key findings

Tribunal's reasoning

The two claimants, directors and 49% shareholders of the first respondent (an insolvent company), sought redundancy, notice, wages and holiday pay from the Secretary of State under the statutory insolvency scheme. Neither claimant attended the final hearing, which proceeded in their absence before Employment Judge Ainscough sitting alone at Liverpool (CVP). The first respondent did not participate; the Secretary of State was represented by Mr Soni.

Applying Ready Mixed Concrete and Autoclenz Ltd v Belcher, the tribunal held that the written service contract describing the claimants as directors on a £30,000 salary did not reflect the reality of the working arrangements. The claimants had set their own pay (reducing it below the national minimum wage and sometimes taking no salary), determined their own hours and leave, were not subject to supervision, and could substitute others to perform their duties. The tribunal therefore found there was no mutuality of obligation or control sufficient to establish a contract of service, and concluded that the claimants were not employees within s.230 of the Employment Rights Act 1996.

Because employee status is a precondition for payments from the Secretary of State, the claims for redundancy payment, unlawful deduction from wages, notice pay and holiday pay were each dismissed. The tribunal added, obiter, that the redundancy claim would in any event have failed under the s.164 ERA 1996 time limits because the claimants had not made a written claim to the first respondent or referred the question to a tribunal within the prescribed period.

Claims and outcomes

4 findings recorded

Claim type	Issue or finding	Outcome	Protected characteristic	Award
Redundancy	Dismissed because the tribunal found the claimants were not employees within s.230 ERA 1996; the tribunal also noted that, in the alternative, the claim would have failed on s.164 time limits.	Dismissed	—	—
Unlawful deduction from wages	Dismissed for lack of employee status under s.230 ERA 1996.	Dismissed	—	—
Breach of contract	Notice pay claim dismissed for lack of employee status under s.230 ERA 1996.	Dismissed	—	—
Holiday pay	Dismissed for lack of employee status under s.230 ERA 1996; tribunal also found on the balance of probabilities that the claimants had sufficient control over their working hours that they chose not to take holidays in the last financial year.	Dismissed	—	—

Legal tests applied

8 references

Official outcome judgment PDF

Gov.uk primary record

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