Appeal No.	 EAT/809/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 29 October 1997

Before
THE HONOURABLE MR JUSTICE MAURICE KAY
LORD GLADWIN OF CLEE CBE JP
MISS S M WILSON

MR H KIRKBY	APPELLANT

(1) ABBEY CARS (HEXHAM) LTD 
(2) SECRETARY OF STATE FOR TRADE & INDUSTRY	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	NO APPEARANCE BY OR ON BEHALF OF THE APPELLANT	

	MR JUSTICE MAURICE KAY:   There is listed today a preliminary hearing in the appeal of Mr Kirkby from a decision of the Industrial Tribunal at Newcastle-upon-Tyne which heard his application on 10th April 1997.

	Mr Kirkby was involved with a company called Abbey Cars (Hexham) Ltd. The finding of the Industrial Tribunal was as follows:

“8. ... It was clear that the applicant was in complete control of the company, quite apart from having a majority shareholding. He took all the decisions, evidenced by the statement that there was no-one from whom he could actually request a redundancy payment. We are quite satisfied that the applicant was running his own business enterprise, he could not be dismissed, except with his own concurrence, and he was therefore not an employee as defined in section 230.”

That is a reference to s.230 of Employment Rights Act 1996.

	Mr Kirkby in the proceedings before the Industrial Tribunal was seeking to recover a redundancy payment, alternatively from the Secretary of State for Trade & Industry in view of the ultimate fate of Abbey Cars (Hexham) Ltd. The finding to which we have just referred inevitably meant that his application failed. 

	Factual circumstances such as these where claims for redundancy payment are made by persons who previously controlled small companies are not uncommon in the Industrial Tribunals, nor in this Appeal Tribunal. We have scrutinised the decision of the Industrial Tribunal in search of anything which could be advanced as a legal error; we have found nothing to suggest any error at all.

	Mr Kirkby has not attended today. Attempts on behalf of the tribunal staff to contact him have met with a disconnected telephone. We observe that his grounds of appeal were somewhat bland. They asserted that the Employment Rights Act 1996 was not in force at the relevant time, and alternatively, that the appeal should be allowed in “the interests of justice”. Whatever the relevant time was taken to be, legislation in precisely the same form of s.230 was in force. The application by Mr Kirkby was doomed in the Industrial Tribunal and, if it is possible so to be, is even more doomed here. 

	In those circumstances, we dismiss his appeal.