Urgh... just got out - we were in for nearly 8 hours. The judge has reserved judgement, intimating that owing to the complexity of the case it will be some weeks before we can expect a decision... And this is only the PH!

Thanks Mariefab - pretty nervous - will post an update as soon as it's over. Hopefully the hurricane won't intervene!

Do I need to print the full case documentation for every case law reference? Hopefully not?? This would be a monster exercise. I.e. there are probably 6 references to cases and they look like up to 50 pages each... 6 copies of each would be 2000 pages or so in total...

haha indeed, don't worry I'll be sure drop them a link to the thread if we win... I believe I now have a completed case doc!! Better late than never... What do I need to take to the Tribunal? I presume a few copies of the main Skeleton Argument. Is there anything else? Do I need to wear a suit?

great - what's the difference can certain sources not be quoted?

The redundancy pay issue is only relevant because the tenure in this instance was 2 yrs and one day. Any reduction from the 2nd of April (completely coincidentally) makes me ineligible for statutory redundancy pay due to sub 2yr tenure.

I'm not fussed about the redundancy pay - the only reason its there is because the EDT was 02/04/13, I was employed for a tenure above 2 years and I was made redundant. To concede the redundancy pay issue is to concede the EDT was not 02/04/13.

okay - nice idea. I think I can construct an argument like this that only falls back on mitigation argument if needed without compromising initial stance of not recognising the breach.

Mariefab - I know I asked before about Section 203, do you think the following argument is worth including. (be brutal - I'm happy to bin it) (i) The Respondent has claimed it breached the employment contract and that the Claimant caused the contract to end because the act of mitigating the loss was incompatible with the terms of employment and therefore an implied acceptance of breach. (j) Section 203 ERA 1996 exists, in part, to ensure that when an employer fails to pay wages, it is not impossible for the employee to satisfy the duty to mitigate loss without the forfeiture of statutory rights. Section 203 ERA 1996 states as follows: 203 (1) Any provision in an agreement (whether a contract of employment or not) is void in so far as it purports (a) to exclude or limit the operation of any provision of this Act, or (b) to preclude a person from bringing any proceedings under this Act before an employment tribunal (k) Under s94 ERA 1996 the claimant had the right not to be unfairly dismissed. (l) Under s135 ERA 1996 the claimant had the right to receive redundancy pay (in the event of redundancy, providing the employment duration was over two years). (m) The Claimant was obliged by law to mitigate loss in the event of a breach. Any employment terms that the respondent considers were incompatible with the mitigation, so as to cause the mitigation to be an acceptance of a breach, are void under s203 ERA 1996 and the claimant cannot interpret the claimant’s mitigation of loss as an acceptance of breach. The application of any such terms in this manner would limit or exclude the claimant’s access to statutory rights (k) and (l). (n) Any employment term causing the act of mitigation to be an acceptance of breach, would be in direct contravention of s203 ERA 1996 and would cause the claimant to be; a. unfairly dismissed (by way of constructive dismissal), and; b. ineligible for redundancy pay (by way of forcing a reduced tenure) (o) Therefore the Respondent’s claim that the Claimant accepted a breach is void in equal measure with any specific employment term that the respondent believes supports the act of mitigation to be an acceptance of breach.

Mariefab what did you mean when you mentioned their references may help me?

Yes the CEO does state that 3 months notice was issued. Unfortunately he is a highly discredited witness since it has recently been discovered that, among other things, he was a disqualified director at the time of running the business. I have outlined that he is presented as a hostile witness in my case. I have also stated that his actions were the actions of the respondent for the duration of his directorship of the business. I.e any effort to discredit his behaviour should discredit the behaviour of the respondent in equal measure.

The work requests have not been redacted but certainly the discussions regarding the salary payments have been redacted. I will print out a few extra copies of everything redacted just in case. Currently the evidence bundle is 300 pages or so so it is becoming difficult to navigate. They have also been a little contradictory to their own policy here and made reference to a "threat" I made regarding court action should the tribunal be struck. I did make the statement about progressing to civil Court if needed, and will make good on it, but it was "without prejudice" so I'll ask where they referenced the "threat" in front of the Judge and see what they say in light of redacting my docs.

No problem Mariefab, there were no other letters, not a single one... and the emails were redacted from the bundle by the respondent since they were "without prejudice". (I had actually included them in support of my case)

Hi Mariefab, Answers as follows: Did you or the Respondent write anything that could be interpreted as indicating that it was considered (by anyone) that your employment ended on any date earlier than 2nd April? No - 100% absolutely not. Is there anything suggesting that the payments you expected were not going to be made at all? No - 100% absolutely not. Or, anything confirming that the payments would be made at a later (even if unspecified) date? No - this was verbal only. But it was a reasonable assumption anyway, wages were generally late and in light of the dire financial circumstances of the business. They have since been recapitalised. Can you give an example of one of the email work requests and it's response? Sure - attached (redacted) - NB this was the day I started the new role: 11 March 2013 14:25 [FROM CLAIMANT] to [Respondent Director 1], [Respondent Employee 1], [Respondent Employee 2], [Respondent Director 2], [Respondent Director 3] With the exception of the ongoing reliability of the platform, the overall [business type] proposition was okay while [Client X] were paying [financial amount] pence per click. I believe the run rate was close to [financial amount]/month at peak. [Client Y] have agency relationships and sales resource so could presumably sell the inventory at similar or better CPC. Running cost would be 1 x 6 month project management resource to implement, 1 x full time DBA, 1 x [business activity person] and 1 FTE sales resource, 1 FTE Flash developer for 6 months then half an FTE Flash dev moving forward. On paper it is not profitable at those figures, however if they could scale up and sell into 3rd party publishers then it might have a chance. If so, NB. I suspect they would encounter many of the same issues we did - these would likely be insurmountable without further investment. Hope this helps. Sent on the Run On 11 Mar 2013, at 11:19, [Respondent Director 1] wrote: > Hi > > How good is [Respondent's Business]' [respondent's product] technology in your mind? Do you think there would be value in [Client Y] buying it? > > Best > > [Respondent Director 1] > > > Begin forwarded message: > >> From: [Client Y Employee] >> Subject: RE: [Respondents Business] >> Date: 11 March 2013 10:15:11 GMT >> To: [Respondent Director 1] >> Cc: [Respondent Employee 1], [Respondent Employee 2], [Respondent Director 2], [Respondent Director 3] >> >> Dear [Respondent Director 1], >> >> Apologies for the delay in my response I have been out of the office. >> >> I am available today to discuss, either over e-mail or on the phone if you are available. >> >> I am keen to resolve this issue at your very earliest convenience. >> >> I look forward to hearing from you. >> >> Regards >> >> [Client Y Employee] | Assistant Credit Manager | [Client Y business]| Tel: [Telephone Redacted] >> >> -----Original Message----- >> From: [Respondent Director 1] >> Sent: 08 March 2013 18:35 >> To: [Client Y] >> Cc: [Respondent Employee 1], [Respondent Employee 2], [Respondent Director 2], [Respondent Director 3] >> Subject: [Respondent's Business] >> >> Dear [Client Y Employee] >> >> I have been trying to call you. Could we please speak early next week? >> >> Kind regards >> >> [Respondent Director 1] >> >> On 7 Mar 2013, at 16:58, [Respondent Director 1] wrote: >> >>> Dear [Client Y Employee] >>> >>> I am a Director of [Respondent's business] together with [respondent's director 2] Cc'd >>> >>> I would like to find an agreeable solution forward in respect of the money owed to [Client Y]. I can be contacted by email or on my cell [Redacted Tel #]. >>> >>> Kind regards >>> >>> [Respondent Director 1]

Right I have the respondent's case document! Firstly they are attempting to state the work I completed was not "work"... excerpt as follows: During February and March (and, indeed, since) other directors of the Respondent (including XXXXXXX and XXXXXXX) have been in contact with the Claimant in connection with various matters, including regarding attempts to settle these proceedings and regarding queries about the Respondent’s business (as the Respondent’s directors were not aware of what had gone on during Mr XXXXXXXX's tenure as CEO) and issues relevant to the High Court proceedings. These are not ‘work requests’ as suggested by the Claimant. Secondly: They are claiming (as expected) that the EDT was brought forward... excerpt as follows: The EDT is a statutory construct defined in s 97 ERA 1996 and not a contractual one. It is “to be decided in a practical and common-sense manner, having regard particularly to what the parties understood at the time of dismissal”: see Newman v Polytechnic of Wales Students Union [1995] IRLR 72, §5. If all the incidents of employment have come to an end, an employee is not attending work, not receiving wages, etc., the likelihood is that the employment has effectively terminated: see Kirklees MBC v Radecki [2009] ICR 1244 at §§37-38 per Rimer LJ, at §47 per Toulson LJ and §§48-56 per Rix LJ. Although an EDT may not be altered retrospectively, there is nothing to stop the parties by words or deeds bringing forward a previously agreed EDT, eg to allow an employee to commence work early for an alternative employer: see Horwood v Lincolnshire UKEAT/0462/11/RN at §§54-62. Any assistance on refuting these points would be greatly appreciated... In relation to the first one it would be great if there was some legal definition of "work" that could be invoked to substantiate the email evidence. In relation to the latter points, these seem seem crazy to me... is it likely the judge will accept this in light of the fact (a) I was working, (b) I was in the office every day and © I was expecting to be paid? The same question also stands for the post March 11th part... can they claim the "no work + no payment = no contract"; law for the time when I was working for my new employer in overlap of my final 3 weeks notice to mitigate the loss of my non-payment? THIS IS SO COMPLICATED

Yeah it's like a really long, drawn out game of angry chess. When you don't know the rules and you've gambled your life savings on the outcome. Then your opponent hires a Grand Master and blackmails your castle. No match for the consumer action group though! Even if I lose it's been a valuable experience. I've learnt a phenomenal amount about legal process and Employment Law which over the course of my lifetime will be of more value than the money I'm claiming today. Stressful but priceless. But enough loser talk for now... let's wait for the PHR outcome first!

Hi Smokejumper - yes they have hired a team of solicitors that have far outweighed the cost of the claim. The not so hidden agenda is in response to their finding out the ex-director has issued a statement supporting my case. They are presumably of the opinion that if he is joined in liability to the Respondent he will be unlikely to continue to support my case.

Haha... you'd think. Well it is actually a Ltd company. The Respondent has claimed that the ex-CEO was working as a disqualified Director therefore cannot claim any limitation of liability, apparently under these rare circumstances he becomes personally, jointly and severally liable for the debts of the company over the duration of his directorship (which includes the date of my dismissal but not the date of the Tribunal). Application remains to be accepted/declined. Personally I would welcome a supporting witness on the opposing bench... I think.

apologies for the radio silence... PHR on Monday! Interestingly the Respondent contacted me on Friday (prior to Monday's submission deadline) asking to settle out of court and pay everything owed etc... we met for a coffee, discussed the proposal and I agreed to settle. I followed up by email confirming happy to settle etc. They then made no further communication and have not settled. I was a little suspicious on Friday and spent the weekend preparing final docs for Monday just in case... hoping I wouldn't need them. I asked on Monday and had a "just waiting for confirmation" response and I've heard nothing since. Bizarre. Anyway the hearing is on For Monday. I have the Sworn Affidavit back in the evidence bundle which is great as it demonstrates a case of the respondent lying to the Tribunal. The "Without Prejudice" doc is out for now. This case is also becoming incredibly complex, it won't help to go into all the details but as a brief snippet: The Chief Exec who made me Redundant has subsequently resigned and has provided a witness statement in support of my case. Upon discovering this on Mon, the respondent has applied to "Join" said ex CEO (and former founder/shareholder) to the Respondent in the Hearing. I'm not even sure how this would work but technically it means that he would be testifying against himself in some manner... yeah really

Well... no - I hadn't requested any docs from the respondent. Any examples of what I should be asking for?

One more thing... The respondent's solicitors have asked me to send them documents relating to my new employment (such as my offer letter and new contract) which they intend to use against me. Am I obliged to provide this? Surely not... Excerpt from correspondence: "Additional documents required Please forward to me for inclusion in the bundle any documents relating to the date you started work at [new company] – for example, your offer letter and contract of employment. I hope to have the paginated bundle, including my client’s documents, to you tomorrow so that you have it over the weekend to refer to in your witness statements. Therefore, please send me your [new company] documents as soon as possible."

Thanks but this is already in relation to a preliminary hearing scheduled for Oct 28th. Are there different types of preliminary hearing? Is it likely a further pre hearing would be granted?

okay next instalment - I received a note today from the other party's solicitors - they now have the case management order and are preparing a bundle. They have advised they will not include two of my documents in the evidence bundle. One is a signed affidavit (on public record) written by the respondent some weeks ago in relation to a case in the high court and the second is a proposed compromise agreement which they have refused on grounds it was "without prejudice". Does the Respondent have authority to refuse evidence? Both docs are central to my case, the first includes the respondent stating on public record that I was made redundant (which is central to the EDT, and thus central to the jurisdiction matter of the PHR). It discredits the respondent and will hopefully support a motion for estopping the respondent from denying I was made redundant. The second document was originally issued without prejudice. I intend to submit this as evidence "of any other wrongdoing" as outlined in the third last paragraph here: http://www.wisewouldmahony.com.au/index.php?id=308 Apparently "without prejudice" is not valid in all circumstances. In the document (a proposed compromise agreement) the respondent refers to the dismissal "by reason of redundancy". This fundamentally supports my point that (a) the respondent is lying on record in the tribunal, or (b) they were prepared to lie in the document, either way it demonstrates they are prepared to retro-alter the dismissal reasons to suit their needs - which is wrongdoing. Can I force the inclusion of these docs in the evidence bundle? Is it likely the Without Prejudice evidence will be accepted?

Yep... the footnote in the CMO states as follows: (1) Any person who without reasonable excuse fails to comply with an Order to which section 7(4) of the Employment Tribunals Act 1996 applies shall be liable on summary conviction to a fine of £1000. * (2)*Under rule 6, if this Order is not complied with, the Tribunal may take such action as it considers just which may include (a) waiving or varying the requirement; (b) striking out the claim or the response, in whole or in part, in accordance with rule 37; © barring or restricting a party’s participation in the proceedings; and/or (d) awarding costs in accordance with rules 74-84.

Hi guys - no update for a few days but if you're interested I submitted my document bundle on Monday. I heard nothing from the other party. I then received a note on Tues from the Respondent's solicitor saying they were not aware of the case management order and "could I forward them a copy". Brilliant. I dropped a note through to the Tribunal outlining my position and their lack of adherence to the CMO. It outlines clearly in the CMO that failure to comply is an offence liable on summary conviction to a fine plus a review of the party's further participation in the proceedings. Hopefully they take this kind of stuff seriously, particularly since it is a second offence (they submitted the ET3 3 weeks late)... and in light of the respondent's main argument being that I missed the deadline. Will update as/when progress happens!