In Train v DTE Business Advisory Services Ltd and Others a partnership transferred all of its assets and liabilities to a limited company. Although it was intended that the partnership would cease to exist and the former partner would become an employee of the new company, the Court concluded that the 'former partner' of the partnership was still a partner and not an employee.
In this case it was relevant that the former partner's remuneration was variable depending on the actual profits of the business (and there was in effect a profit sharing arrangement amounting to a partnership) and also that he had no separate employment contract. The Court followed the principle of looking at substance over form when it comes to legal relationships.
Although the shareholders agreement specifically stated that there was no partnership, the partner was paid through PAYE, he had a fixed holiday entitlement, and he was held out as being an employee, it was still found that when the reality of the situation was examined that he remained a partner.