In person For the v Ms L Whalley, lay representative — 2023

The Claimant sought payment from the National Insurance Fund under ss.166 and 182 ERA 1996 for redundancy pay, notice pay, holiday pay and arrears of wages following the insolvency of D & S Services (UK) Limited on 24 October 2023. The issue for the tribunal was whether he was an employee of the company at the date of insolvency. The tribunal applied s.230 ERA 1996 and referred to Rajah v Secretary of State EAT/124/95, holding that the relevant date was the insolvency date rather than the position years earlier.

The Claimant relied on a written contract dated 20 February 2015, but the tribunal was not satisfied that it was genuine or that it continued to govern the parties' relationship by October 2023. It noted that the contract had not been mentioned in the Claimant's Redundancy Payments Service application, subsequent emails or claim form, and it did not accept his explanation that he had been told the document was too old to be relevant. The tribunal also found inconsistencies between the contract, the Claimant's account of his hours and pay, and the P60 figures produced.

At the date of insolvency the Claimant was the sole director and owned 100% of the shares. The tribunal said there was no genuine employment relationship because it could not see meaningful employer control in those circumstances, and it relied on the absence of mutuality of obligation, control and personal service consistent with a contract of employment. It also found no evidence of a required working pattern, sickness certification or statutory sick pay, holiday arrangements, or a regular salary. On that basis, the tribunal held that the Claimant was not an employee when the company became insolvent and dismissed all claims.