Mrs V Rux-Burton Mr J Rux-Burton v Rux-Burton Associates Ltd and 1 other — 2024

This was a reserved liability judgment in joined claims by Mrs V Rux-Burton and Mr J Rux-Burton against Rux-Burton Associates Ltd (the insolvent First Respondent, which did not attend) and the Secretary of State for Business, Energy & Industrial Strategy. The agreed central issue was whether each Claimant was an employee of the Company within s.230 ERA 1996 for the purposes of ss.166 and 182 ERA. The Secretary of State conceded that insolvency and a redundancy situation were established and that, if the Claimants were employees, payments under ss.166 and 184(1)(b) ERA would be payable; the s.184(1)(c) holiday pay position was later conceded subject to pro-ration. The Claimants withdrew their s.184(1)(a) arrears of pay claim.

Applying the principles in Clark v Clark Construction Initiatives Ltd as approved in Secretary of State v Neufeld, together with the characteristics of an employment contract in Western Excavating, Judge Harrison concluded that Mrs Rux-Burton became an employee on joining the Company in 2004 under an express written contract and remained an employee at the Insolvency Date of 9 March 2023, including after she acquired shares in 2018, as the necessary element of control was maintained. In relation to Mr Rux-Burton, the Tribunal found that his 2014 written contract was neither a sham nor entered into for an ulterior purpose, that his engagement was broadly consistent with that contract, and that despite being a controlling shareholder and director he subjected himself to sufficient control by the Company to be an employee; non-payment of the national minimum wage was treated as one factor among many and did not determine the case against him.

The Tribunal also refused the Claimants' applications to amend to add disability discrimination claims, on the basis that such claims fell within Part 3 of the Equality Act 2010 over which the Employment Tribunal has no jurisdiction, and refused related anonymity applications, giving weight to the principle of open justice. A remedy hearing was listed for 2 May 2025.