The claimant was making a claim for a redundancy payment, holiday pay and notice pay. He formed a company in 1987 and as the company grew he became one of a number of directors and kept this position until it became insolvent in 2012. He argued that for period of 20 years up until 2012 he was continually employed by the company.

The tribunal stated from the outset that the issue of whether the claimant was an employee pursuant to The Employment Rights (Northern Ireland) Order 1996 must be decided before considering any issues as to whether he merited any payment from the Department for Employment and Learning. The Tribunal held that the claimant was not an employee. The court considered that there were factors indicating both employee and non -employee status, but the importance of this case is highlighted in two factors which the Tribunal emphasised:

1. That in a 2 year period, the claimant received no salary for 8 months. Added to this, the company failed to address this non -payment, both of which were not indicative of an employer-employee relationship.

2. The claimant did not make active attempts to access these missed payments, nor did the company consider that they owed the claimant a debt.

The tribunal also placed emphasis on the lack of a written contract which, they held, was indicative more of a family relationship than that of employment. The Tribunal relied strongly on the case of Clarke v Clarke Construction Initiatives Ltd [2008] IRLR 364, EAT in reaching its conclusions.

Practical lessons from this decision

What this decision is emblematic of is that whilst a multi-factorial test is utilised in deciding the employment status of an individual, in every case a Tribunal is likely to focus on a number of particularly important facts that tip the balance one way or the other i.e. in this case the issue of non-payment of wages