Case 8000161/2024 · Employment Tribunal
EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 8000161/2024 Held in Glasgow via Cloud Video Platform (CVP) on August 2024 Employment Judge N M Hosie Mr B Thomson
The tribunal's central issue was whether Mr Thomson was an employee of Omega Finance Limited within the meaning of s.230 of the Employment Rights Act 1996, so that he could bring claims arising from the company's insolvency. It found that he had a written contract of employment dated 11 April 2011, that the contract was genuine and not a sham, and that it reflected the true agreement between the parties. The tribunal also accepted that he was paid a salary, paid tax and National Insurance for a period, worked exclusively for the company, and carried out the work personally.
In deciding employee status, the tribunal referred to the statutory definition in s.230, the general approach in Harvey on Industrial Relations and Employment Law, and authorities including Neufeld, Bottrill, Clark, Ready Mixed Concrete and Hall v Lorimer. It treated control as a relevant factor, but held that the fact Mr Thomson was also the managing director and sole shareholder did not prevent him from being an employee. On that basis, it held that he was working under a contract of employment and was entitled to the protection given by the 1996 Act in insolvency.
Having found employee status, the tribunal upheld the claim for unpaid wages under s.23 of the 1996 Act and awarded £8,702.28 for the period from 31 March 2023 to 5 December 2023. It also held that the liquidation of Omega Finance on 5 December 2023 created a redundancy situation and awarded £4,351.14 as a redundancy payment. For notice, it found that Mr Thomson was summarily dismissed without the 12 weeks' statutory notice due on his length of service, and awarded £2,881.32 for breach of contract. The claim for unpaid holiday pay was dismissed because Mr Thomson accepted at the hearing that he did not have such a claim.
| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Unlawful deduction from wages | The tribunal held that Mr Thomson was an employee and was entitled to wages for the 36-week period from 31 March 2023 to 5 December 2023, calculated at £241.73 per week. | Upheld | — | £8,702 |
| Redundancy | The tribunal found that the company went into liquidation on 5 December 2023, creating a redundancy situation. Mr Thomson had 12 complete years' service and was 65, so the redundancy payment was calculated as 18 weeks at £241.73 per week. | Upheld | — | £4,351 |
| Breach of contract | The tribunal found that Mr Thomson was summarily dismissed without the 12 weeks' statutory notice to which he was entitled. Damages were calculated using net weekly earnings of £240.11. | Upheld | — | £2,881 |
| Holiday pay | Mr Thomson accepted during the hearing that he did not have a claim for outstanding holiday pay. | Dismissed | — | — |
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