Hi again,

given that you are such a small organisation can't you all sit down for a 'clear the air' meeting? Is the MD the owner? Surely it would be in his interest, the company's (and yours) to address this issue asap? That might be a persuasive argument to put to the MD? It's not mutiny, you are trying to bring the team together, not fracture it further.

Hi jehovah1210,

we covered this problem in an earlier thread you posted haven't we?

http://www.consumeractiongroup.co.uk/forum/showthread.php?414600-Stress-and-depression&p=4440704#post4440704

Same here, from what I have seen on this forum I think less than two years in and you have very limited employment rights. Only five months in and it might even be that you could still be in your probationary period (check out your contract).

If you are in a new job just be thankful and move on.

My reading of the Newcastle Mind case is that the executive committee are the one's responsible for this debt - not the charitable trust (assuming there was one). Therefore it may be the total assets of the committee members that may be the issue here, not those of the trust?

Isn't this always the case? but not the right way.

Well, there is the rights and wrongs of a situation, and if management get it wrong they will do their best to shut you up ahead of a hearing, that's for sure. But sure, sometimes claimants can misread the situation, over-react, and head off to an ET convinced they are in the right, when they aren't. A whole heap of negativity that should never have happened - and they may lose their job along the way. Very sad.

Good luck Alicia86,

lamma's reference to the Newcastle Mind case throws some light on the difficulties that can be thrown up around one particular point. Useful.

You have done the hard part though, I'm sure we all wish you the best with recovering what is owed.

There was a legal entity at the other end of the employment contract AND it is a registered charity. I would go for their bank account if they do not pay within the Tribunal's deadline/procedure.

Affleck v Newcastle Mind [1999] ICR 852, [1999] IRLR 405, EAT. looks to be a reference case.

http://www.bailii.org/uk/cases/UKEAT/1999/537_98_1003.html

Thanks lamma, that reference made interesting reading. To be clear though - an unincorporated association may be considered a 'legal structure' but it is not a legal entity - it is not recognised in law. It would seem that simply registering with the Charity Commission does not automatically incorporate a voluntary organisation.

Reading the EAT decision of the Newcastle Mind case, it would seem that they were a charitable trust - i.e. the management committee/trustees did not own the assets. Also the responsibility for any contracts of employment sat with the management committee - not the charitable trust. As such that committee would have had no protection of limited liability and as such were personally liable, it would seem.

Likewise, in this case, the liability would appear to sit with the management/executive committee, whether they were managing a charitable trust or not, they are personally liable for this debt. How that liability is borne between them is another matter.

On reflection, in response to Alicia86's query (as to who to name on any high court order), I suppose the most straightforward answer might be to list the respondents in the case.

It would be insightful to find out whether individual members of the committee were listed as respondents or they simply used the name of the unincorporated association itself?

Furthermore I believe Tribunals do not usually set deadlines for payment. They tend to use the more flexible term 'forthwith' rather than set a specific date/time.

I hope that stacks up OK - though any further help/clarity on this would be most useful; this site is pretty cool isn't it? - we can try to help others and learn more ourselves.

Well Rosienlily,

as has been pointed out already CD is difficult to prove (though not impossible). Going it alone decreases your chances of success against the respondent's legal team (no matter how good your claim). The capricious nature of the ET process is another factor you don't hear much about - but it exists. You could get a good panel/judge, you could get a hostile one too. Plays with the percentages. The (civil service) admin. 'support' function can be a nightmare to deal with. That reduces your chances as well. And then we have the delights of the tactics of the opposing legal team before you get to the hearing.

'Big companies get away with it don't they' - not all the time.

Sorry to be so negative - but people who win their claims often say that they wouldn't have gone through the process if they had known what it is like. Imagine how might you feel if you are convinced you have a just claim but get beaten by the odds on the day. It can be a dark place.

However that is not what you were asking. I would point you to the following website and suggest you obtain the book that is mentioned there. I wish I had had it when I first started my ET. http://etclaims.co.uk/

The book has just come out as a fourth edition (in the last week or two) - so it will be up to speed with the recent changes that came into being last year. It takes you through the processes and has helpful suggestions to make. It doesn't have all the answers (esp. around the antics of the respondent) but it will give you a sense of what you need to do. It is good to have to hand for some peace of mind and might help you sleep better at night if you head down the ET path.

The thirst for revenge/to right a perceived wrong etc; can also blind you to your real chances of success. And why not - you are the one that has been done over. You need a 'dispassionate' advisor to look at what you have got. Try to get some advice from your local CAB. Some legal centres can give you free professional advice as well. In London, for example, the Mary Ward centre is a fine place to seek free advice from trained professionals.

I wish you well, but please don't forget, letting it go, walking away and getting on with your life can be a wise and brave choice too.

Hi ladyridercymru,

who is to say where/when it was lost - it may have arrived at head office and got lost there, someone may not have done their job properly (i.e. setting you up on payroll) and may be fibbing to cover their own back. Who is to say what happened and who is to blame. Unfortunately - a few imponderables then.

Taking your new employer to task over this isn't a good start to your working relationship. Best to let it go unless there are further ramifications to yourself around identity fraud. Good luck with the job.

Hello Alicia86,

well congrats on a successful claim.

I'm not a legal person at all - but I have spent some time knocking around the charity sector.

An unincorporated association is a coming together of a number of individual members for a common purpose - a toddler group, a sports club - that sort of thing. They may have a constitution and hold meetings of course; but an unincorporated association has no legal existence - it is not recognised in law.

Although they would not have had to seek the approval of any regulatory body before the association was set up - if the association's income is regularly over £5k per annum, then I believe they are required to register with the Charity Commission. I'm not sure that then makes them a legal entity (as per the judge's opinion at your hearing)? (It would be interesting to have a contributor with a legal background clarify that point please?)

As an unincorporated association, it's members are meant to be personally responsible for the group's obligations and debts - including this judgement of yours. They could appeal this ET decision of course.

I'm sure it might be worthwhile seeking guidance from the high court officers at this stage; but it may well be that you should name all those on the management committee. If they dissolve the association and run for cover it still does not absolve them of their erstwhile responsibilities while the association was still operating.

Hope that helps.

Hi maddiemay,

are you missing a v. important point or two in the list perhaps (fog of battle and all that).....

"Point 4.1 (if you like), employer insisted Susan work her notice." (Late Friday, Monday morning?) 4.2 Was presented with a sick note for 4 weeks as a result of work stress (late on Monday?).... accepted resignation.....

From what I understand, the employer did not initially accept the resignation and insisted on Susan working the notice period. It was only on receipt of the month long sick note that the employer (backtracked?) and 'accepted' the resignation. Grey area? To my mind it is more a case of the employer airbrushing out that crucial 'step' in the process to suit the employer's current stance.

The employer was insistent on the period being worked until she caught sight of the sick note. That cannot be ignored surely?

How about Susan now contacting Ofsted (anonymously?) re safeguarding issues?

Dare I suggest the (age-old) defence of 'custom and practise'?

If many employees are doing it, it might be seen as an implied 'unofficial' employee benefit for all workers. In a way you may have already commenced such a defence by pointing out that other employees are doing this as well. The innocence of openly asking for an envelope can only support your defence.

Please don't get bent out of shape over this. As I mentioned elsewhere on this site yesterday, sometimes our perceptions about the size of a problem can be wholly different from management's view. Hopefully it will blow over soon and everything will settle down.

How does that some it up, are you saying it's like ground hog day.

Yes indeed smokejumper. The daily grind got to me, especially the hassle that followed my ET submission. I even created a 13:8 screensaver (remember them!).

I look back now and think that I should have done more to keep myself (mentally) healthier at the time - but when it all gets under your skin, well, you can't see the wood for the trees. I hope James looks for the positives in his workplace as well as overcoming (or at least accommodating) the one (big) negative - that manager. Perhaps in time, the manager himself may be got rid of, or move on.

Hi Jehovah1210,

you would not get to a full Tribunal hearing on this basis - you would be made to look a right chump. Sorry, but the ET process can be a very unforgiving and demanding journey - one that rarely ever operates on an emotional level. It may mean a lot to you - that doesn't mean it means a thing to them.

Reading between the lines you get on OK with the rest of your colleagues - it is just this one manager that is the problem; that and working in a pressurised work environment. Constant pressure doesn't allow for clear thinking.

Sometimes part of the problem can be within ourselves and how we perceive others. I particularly remember two ex work colleagues who reacted with smouldering blind fury to every management decision that was made - no matter what it was about. (They are still there!)

Sometimes stepping back and trying to be more objective might help.... easier said than done though. Are there no team meetings that can be used to clear the air? Maybe even a good chat/bitch over a few beers/coffees with a couple of you colleagues after work might begin to provide a solution. Is there anything that you could do that might be the first positive step towards a resolution?

Most employ is drudgery and for the most part our attitude towards it will always be negative - I think Hebrews 13:8 sums it up nicely. http://www.biblegateway.com/passage/?search=Hebrews+13%3A8&version=KJV

The public are allowed to attend ET hearings. Perhaps you should go along to a couple to see if it is something you want to go through.

Surely the judges must see patterns of behaviour forming?

So what? Its not what they are there for. Forget emotive issues. If you don't have a good claim, or don't present one, you're chopped liver - end of claim. Next! Its a factory production line.

midget1 - what do you hope to get out of bringing a claim? The ET process is an adversarial process, not a caring process - you are expected to stand up and fight your corner. If you don't, you lose; I know. You may wish to seek legal advice as to whether you have a solid claim in the first place. ET's can do considerable damage to a claimant's mental health. That I know as well.

There is no shame in dropping the claim and moving on with your life.

In some way if I go in there completely ill prepared it might demonstrate how my disabilities impact on my life.

Nooooooooooo!

I made several mistakes with my own claim (back in the day) because I hadn't prepared properly. It is seductive to think that the Tribunal will help you completely through the process. That is not the case. Just because they have accepted your ET1 does not mean they are saying that you have a valid claim. Far from it.

I suspect the collywobbles are setting in a bit as you get nearer things becoming a reality? Understandable.You might have a good claim - but lack of knowledge of the Tribunal processes could undermine you and scupper you fairly quickly. Unrepresented you can feel lost in it all and up enormous pressure on yourself. Your employer's legal representatives won't feel that way - for some the Tribunal service is almost a second home.

As always could I suggest you consider getting a hold of a copy of the book mentioned on this website. (Oh, look at that - The brand new fourth edition has just appeared! - You're in luck). It doesn't have all the answers but it will help you understand what is expected of you and the respondent. If nothing else it will help you feel calmer about things going forward.

I would add that the nature of hearings differ, which is why you need to know what type of hearing you are actually attending. A relatively informal CMD will seek to establish some of the basic facts around a claim going forward. A formal PHR perhaps could stop your claim stone dead.

When you ask about representation I take it you are writing about free representation? That may take time to arrange - as you have found at the CAB.

You could write to the Tribunal service today/asap and request that the (CMD?) hearing is postponed so that you can arrange for a legal rep. to attend the hearing with you. A CMD is usually a 'floating' meeting, which means that you could turn up next Monday and if they don't have a judge free to fit it in it will be adjourned to another date. It also means the Tribunal won't blow a gasket if you request a postponement at this point.

Hi midget1,

seeking representation is one thing - but you have certain responsibilities as well - it is your claim after all. You need to up your game pretty quickly.

 

I don't think it's a CMD - there are about 10 points to be discussed, which will form the case for the hearing.

 

Thanks

That could be a CMD hearing. Have you any correspondence from the Tribunal which explains what sort of meeting it is?

If you are unsure what sort of meeting you are attending at this early stage it does not bode well for the future.

Hi midget1,

if you are due to attend a preliminary hearing I assume you must have submitted a ET1 form? What is the basis of your ET1 claim?

Is this preliminary hearing a CMD? - a case management discussion.

Of course the respondent's reps will threaten you with all possible things, it's their job.

Yours should be to ignore it.

If the other side are threatening a costs application it requires consideration - it should not be ignored - that would be foolhardy. You need to assess the risks of that threat.