In person For the First v Secretary of State for Business & Trade and 1 other — 2023

The tribunal found that Mr Peter Dewbery was an employee of Fitness In Time Ltd for the purposes of ss.166 and 182 ERA 1996, rejecting the Secretary of State's case that he was not employed when the company entered liquidation. It accepted that the 2011 document headed 'Statement of Employment Between Peter Dewberry and Fitness In Time Limited' was genuine rather than a sham, and that it reflected the relationship in practice even though some terms had not been updated as the business expanded.

The tribunal found that Mr Dewbery personally carried out the work, was subject to sufficient control, and had the mutuality and personal service required by Ready Mixed Concrete. It relied on evidence that he worked around 50 hours a week across the gyms, received PAYE payslips and P60s, was enrolled in NEST, received furlough payments and statutory sick pay, and continued to perform the role himself. Applying Autoclenz, Clark, Neufeld and Howe, and Knight, the tribunal held that being sole director and shareholder, using a director's loan account, taking dividends, investing money into the company, and not always paying himself the contractual rate or the national minimum wage did not prevent employee status.

Having found employee status, the tribunal awarded redundancy pay of £4,750, notice pay of £4,750, holiday pay of £135.71, and arrears of wages of £3,800, making a total of £13,435.71. It calculated redundancy and notice pay using a weekly rate of £475 based on 50 hours at the £9.50 NMW, treated 24 June 2022 as the redundancy date, used 15 September 2022 as the relevant insolvency date for the wages claim, and assessed holiday pay pro rata from the leave year starting 11 August 2022.