The Employment Appeal Tribunal (“EAT”), in the case of Secretary of State for Business, Innovation and Skills v McDonagh, has had to consider what the “appropriate date” is for the purposes of employees claiming arrears of salary and holiday pay from the National Insurance Fund, in circumstances where a voluntary insolvency procedure is followed by a compulsory insolvency procedure.

Last year, in the case of Oakland v Wellswood (Yorkshire) Ltd, the EAT suggested that, if an administrator has been appointed with a view to liquidating a transferor company, this fell within the exception provided by TUPE Regulation 8(7) (which provides that where there are insolvency proceedings instituted with a view to liquidation, the key employee protections afforded under TUPE do not apply). This ran contrary to government guidance.

The Court of Appeal has heard the appeal in Oakland v Wellswood (Yorkshire) Ltd. Although its written judgment has not yet been published, it appears that it heard an appeal only on a narrow point of employment law and did not give definitive guidance on the application of the insolvency provisions in the TUPE Regulations which had been the principal issue in the EAT.

When can shareholders also have employee status?