Mr R Mackie & others v Represented by:10 Mr P Kissen - Solicitor Glasvegan Limited — 2024

This was a consolidated set of 19 claims arising from dismissals for redundancy on 27 November 2022. The claimants argued that the respondent had proposed to dismiss 20 employees within 90 days because Ms Arita Bereza, the respondent's sole director and sole shareholder, was also an employee and was within the affected group. The tribunal therefore heard a preliminary issue on whether Ms Bereza was an employee at the material time for the purposes of the collective consultation provisions in section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992.

The tribunal reviewed the common law employment-status authorities, including Autoclenz, Ready Mixed Concrete, Lee v Lee's Air Farming and Clark v Clark Construction Initiatives Limited. It found that there was no written contract for Ms Bereza's activities, no day-to-day control by the respondent over what she did, no agreed hours, and no obligation to work. Her work at the Glasgow café was described as sporadic and limited, and the evidence showed that she largely attended in her capacity as business owner rather than as a worker performing duties under a contract of service.

The tribunal attached limited weight to the fact that Ms Bereza had been placed on payroll and received monthly payments of £788 from around August 2019. It found that these payments were set up on the advice of her accountant for tax-efficiency reasons and were not linked to identifiable work done for the respondent. The tribunal also noted that she used her own equipment, was not entitled to sick pay, holiday pay or other staff terms, and remained a director and shareholder after the staff redundancies.

The tribunal held that Ms Bereza was not an employee of the respondent at any material time, including when the 19 redundancies were proposed and implemented. It followed that the respondent was not proposing to dismiss 20 or more employees as redundant within a 90-day period, and the tribunal said it appeared to have no jurisdiction to determine the claims. It directed the parties to confirm their positions within 21 days of the judgment, with any further procedure to be decided after that point.