Claimant v Omega Finance Limited (in Liquidation) per Middlebrooks Business Recovery & Advice
Outcome
Individual claims
The tribunal found Mr Thomson was an employee under s.230 ERA 1996. His salary was £12,570 gross per annum (£241.73 per week). He was only paid until 31 March 2023 but his employment continued until 5 December 2023 when the company went into liquidation. He was therefore entitled to 36 weeks' unpaid wages totalling £8,702.28.
The company ceased trading and went into liquidation on 5 December 2023, clearly constituting a redundancy situation. Mr Thomson had 12 complete years of service and was 65 years of age at dismissal. Based on weekly earnings of £241.73, he was entitled to a statutory redundancy payment of £4,351.14 (18 weeks).
Mr Thomson was summarily dismissed without notice when the company went into liquidation. Based on his length of service, he should have received 12 weeks' statutory notice. The company was in breach of contract and damages were awarded based on 12 weeks' net pay of £240.11 per week, totalling £2,881.32.
During the hearing, Mr Thomson accepted that he did not have a claim for outstanding holiday pay and this claim was withdrawn.
Facts
Mr Thomson was the managing director and sole shareholder of Omega Finance Limited, which he founded in April 2011 to provide finance in the healthcare, veterinary and optician sectors. He worked under a written contract of employment dated 11 April 2011, initially on a salary of £30,000 per annum, later reduced to £12,570 due to cashflow problems. He paid tax and national insurance, worked exclusively for the company often exceeding 40 hours per week, and took annual holidays. When the company went into liquidation on 5 December 2023, the Secretary of State rejected his insolvency claims on the basis he was not an employee. He had not been paid wages since 31 March 2023.
Decision
The tribunal found that Mr Thomson was an employee within the meaning of s.230 ERA 1996, despite being sole director and shareholder. The written contract was genuine, he was paid a salary subject to tax and NI, worked exclusively for the company, and there was sufficient control through the company as a separate legal entity and regulatory oversight by the Financial Conduct Authority. The respondents were jointly and severally liable for unpaid wages (£8,702.28), redundancy pay (£4,351.14) and notice pay (£2,881.32). The holiday pay claim was withdrawn.
Practical note
A sole director and shareholder can be an employee of their own company if there is a genuine contract of employment, payment of salary with tax/NI deductions, exclusive commitment to the business, and sufficient control through the company's separate legal personality and external regulatory oversight.
Award breakdown
Award equivalent: 65.9 weeks' gross pay
Legal authorities cited
Statutes
Case details
- Case number
- 8000161/2024
- Decision date
- 20 August 2024
- Hearing type
- full merits
- Hearing days
- 1
- Classification
- contested
Respondent
- Sector
- financial services
- Represented
- No
Employment details
- Role
- Managing Director
- Salary band
- Under £15,000
- Service
- 13 years
Claimant representation
- Represented
- No