Kevin Hawker Cheryl Hawker First v Roco Vere Ltd (in liquidation) Second Respondent: The Secretary of State for Business and Trade (the “SOS”) — 2024

Mr Hawker's claim to payments from the National Insurance Fund under ss.166 and 182 ERA 1996 was dismissed. He was the 65% shareholder and director of Roco Vere Ltd and relied on a 2000 contract and a 2011 contract, but the tribunal found those documents were not really intended to govern an employment relationship. It noted that the contracts contemplated pay below the National Minimum Wage, vague working hours and, in the 2000 version, no real power of dismissal. The tribunal found the arrangements were more consistent with him protecting his design rights and operating as an office holder than as an employee.

The tribunal accepted that Mr Hawker was very hands-on in the business, but found he was not subject to sufficient control by the company or his co-directors, that the mutuality of obligation was that of an office holder, and that the personal service requirement was not met because he had previously used others to carry out tasks. Applying Ready Mixed Concrete, Nethermere, Autoclenz, Neufeld and Clark, it concluded that he was not an employee throughout the relevant period and that his claim failed.

For Mrs Hawker, the tribunal reached the opposite conclusion. It found that the 2018 contract, which provided for £1,200 a month plus dividends, 30 hours a week, holiday, sick pay, pension provision, a disciplinary procedure and one month's notice, was not a sham and was intended to reflect an employment relationship. It accepted her evidence that she was put to work where needed, that Mr Hawker exercised sufficient control, and that she was required personally to carry out the work. Her claim for NIF payments therefore succeeded, and a separate remedy hearing was listed because the amount payable had not yet been determined.