Ian Smith tramps across some difficult terrain in search of clarity & simplicity
Secretary of State for Business, Enterprise and Regulatory Reform v Neufeld [2009] EWCA Civ 280, [2009] All ER (D) 40 (Apr) is the appeal case in anticipation of which the employment tribunals' president issued a practice direction staying all similar cases before the tribunals.
The BERR case concerns the well-known problem of when a majority shareholder and/or director of a company that has become insolvent can claim to have been an “employee” and thus entitled to claim certain unpaid amounts from the secretary of state under the Employment Relations Act 1996, s 182.
Sadly, given the economic climate, this is once again a live issue: the Court of Appeal was told that in 2008 there were “some 12,000 claims by directors on the National Insurance Fund, of which some 600 had gone or were expected to go to employment tribunals”. BERR took the view that the existing guidelines to tribunals were contradictory and difficult to apply, and so were keen for this appeal (actually two joined appeals) to go forward.
In
