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Kevin Moore
Kevin Moore has been a barristers’ clerk
for 35 years and joined Chambers in 1999
having previously been senior clerk in a
highly regarded commercial set. He is a
member of the Institute of Barristers’
Clerks.
Kevin is responsible for the overall clerking of Chambers and is
happy to discuss any aspect of the service with clients. His flexible
and pragmatic approach to the job is appreciated by solicitors who
instruct Chambers and has been recognised in the Legal 500.
Kevin is married with 3 grown up children who still manage to be
a drain on resources. In his spare time Kevin is a long suffering
supporter of West Ham United FC.
David Wright
David has been clerking for 10 years in
leading commercial and employment sets.
He qualified as a barristers’ clerk in 2002
and is a member of the Institute of
Barristers’ Clerks.
In 2007, David joined Tanfield Chambers as
Principal Employment and Commercial Clerk where he has put his
wealth of experience to good use. His combination of hard-work,
organisation and reliability has proved a real asset to Chambers.
When agreeing fees, David always strives to remain client focussed
and fair.
In his spare time David studies Hapkido (a Korean martial art) and
enjoys playing football and badminton. He is also a bit of a film buff.
Rimer LJ’s Judgment in Neufeld approved Elias P’s guidance in para 98 of
Clark v Clark Construction Initiatives [2008] IRLR 364 EAT on
deciding whether a majority shareholder should have employment
status, with two qualifications:
(1) The onus is on the party denying a contract; where an individual has
paid an employee's tax and NI, prima facie he is entitled to an employee's
rights. Neufeld added that guideline (1) should not be read as
constituting a formal reversal of the burden of proof on to the party
denying employment status. It may still be necessary for the putative
employee to do more than produce documentation to satisfy the tribunal.
(2) The mere fact of majority shareholding (or de facto control) does not
in itself prevent a contract arising.
(3) Similarly, entrepreneur status does not in itself prevent a contract
arising.
(4) If the parties conduct themselves according to the contract (eg as to
hours and holidays), that is a strong pointer towards employment.
(5) Conversely, if their conduct is inconsistent with (or not governed by)
the contract, that is a strong pointer against employment.
(6) The assertion that there is a genuine contract will be undermined if
there is nothing in writing. Neufeld added that guideline (6) may be
expressed too negatively. Lack of writing may be an important
consideration but if the parties' conduct tends to show a true contract of
employment 'we would not wish tribunals to seize too readily on the
absence of a written agreement to justify a rejection of the claim'.
(7) The taking of loans from the company (or the shareholder
guaranteeing its debts) is not intrinsically inconsistent with employment.
(8) Although majority shareholding and/or control will always be
relevant and may be decisive, that fact alone should not justify a finding
of no employment.
Recently, the EAT applied Neufeld in Ashby v Monterry Designs Ltd
(2009) 18/12/2009 holding that a tribunal had misdirected itself when
deciding that a shareholder in a company had not been its employee. The
tribunal had not had the benefit of Neufeld when reaching its decision
and had placed too much weight upon the question of control in
determining whether there was a contract of employment.
Practical effect
The CA were informed in Neufeld 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”. The CA assumed
that a considerable number were directors who were also controlling
shareholders.
A claim on the NI fund could add up to £21,280 assuming that the
maximum redundancy, wages, holiday pay and compensatory notice pay
were all claimed, and the limit on weekly pay is £380 (as it is from 1
October 2009 under s.189). In the author’s view, such potential claims
are likely to be worth pursuing even for high net worth potential
claimants, in the current financial climate.
MARTINA MURPHY
For further information or to instruct a barrister, please contact
David Wright, Employment Clerk or Kevin Moore, Senior
Clerk, on 0207 421 5300 or clerks@tanfieldchambers.co.uk
employment barristers:
David Berkley QC (1979)
Andrew Thompson* (1969)
Paul Staddon (1976)
David Daly (1979)
Simon Cheves (1980)
Robin Howard (1986)
Christopher Bamford (1987)
Stephen Heath (1992)
Catriona MacLaren (1993)
Peter Linstead (1994)
Martina Murphy (1998)
Andrew Sheftel (2004)
Louise Mankau (2005)
Paul Stevenson (2006)
Gemma de Cordova (2006)
Cecily Crampin (2008)
* Joint Editor of Harvey on Industrial Relations and Employment Law
Tanfield Chambers’ dedicated conference facilities are readily accessible
by the mobility-impaired. Please contact the clerks to agree fees in
advance, whether on a fixed or hourly rate. Feedback on our service is
welcomed and should be directed to the Senior Clerk, Kevin Moore. A
copy of Chambers Complaints’ Procedure is available on our website or
on request.
To contact us: T: +44 (0) 20 7421 5300, F: +44 (0) 20 7421 5333, DX: 46 London Chancery Lane, E: clerks@tanfieldchambers.co.uk
Address: Tanfield Chambers, 2-5 Warwick Court, London, WC1R 5DJ