Having an ET case re-opened?

[flooz]

This is a bit of a long shot, but I wonder if anyone knows the answer.

 

ET case for constructive dismissal won without question. It was never about the money, more proving a multi-million £ company should still play by the rules. At the time of the case, I wasn't aware that I had to put together the financial details of what I was claiming - thinking the Court would make an award on what they thought.

 

In the end, I claimed loss of earnings up to the date of the hearing, which wasn't a huge amount (petty cash to the company involved), and although the ET recommended I claim for future loss of earnings, as I was then self employed, and obviously hoped there wouldn't be, I declined to do so.

 

Now I really wish I had, as due to the recession, the business lost a considerable amount of money to start off with.

 

I know it's a long shot, but is it possible to have the claim re-opened and re-assessed?

 

I'm reasonably sure it's not - but there's no harm in asking?

[SarEl]

Sorry - it's not possible.

[flooz]

Thanks for responding. I didn't think it would be, but it was worth asking.

[flooz]

I'm a bit stuck on this one, so could do with some advice.

 

Business has transferred ownership twice in the last 6 months, so shall call them employer 1, 2 and 3.

 

I'm employer 1.

 

One of the employees I transferred was pregnant and her SMP started approximately 4 weeks after the first transfer.

 

Employer 2 didn't really want to take on my staff, indeed dismissing both, although came unstuck and compensated one, and forced the other to start her SMP a little earlier.

 

Employer 2 claimed the SMP from HMRC in a lump, 'up front' and has been paying the SMP accordingly.

 

Now business has transferred again. Employer 3 is making no attempt to contact employee and the business is currently closed, although employee has written to 'introduce' herself. Employer 2 says that he has passed over the remaining SMP due to employer 3, although there is only his word on this (and, I'm disappointed to say, little trust in him).

 

Although I'm sure that employer 3 would normally be liable for any remaining SMP, given that employer 2 received the monies 'up front', I'm not sure if there is any liability there or not.

 

Can anyone advise please?

 

Many thanks for your help.

[Scouse Paul]

If the employee was TUPED over then the new employer would have to pay any remaining SMP

[flooz]

If the employee was TUPED over then the new employer would have to pay any remaining SMP

Thank you for responding. I know that normally that would be the case, but the transferring employer has already received the SMP from HMRC, in advance. Given that the monies have been paid to him, I'm just not sure if the liability (at least in HMRC's opinion) remains with him.

[flooz]

I'm helping a former employee of mine bring a claim for unfair dismissal against the new operator of the business, under the TUPE legislation. ET have accepted the case and set a date for hearing.

 

Out of the blue, the respondent's solicitor has written directly to her, requesting her to withdraw the claim, and i she doesn't, they will make an application for the case to be struck out.

 

Having read the relevant rule that the letter refers to, I am of the opinion that the letter is a bit of 'scare tactics' in as much as "we know what we're talking about, you don't, and you haven't a hope of winning, so call it off now" sort of thing. Is this a normal tactic by a solicitor?

 

Secondly, although only my opinion, I think it's inappropriate for the solicitor to be writing directly to her with such a letter, and believe they should only write through the tribunal?

 

Can anyone help please?

[BankFodder]

It may well be a scare tactic. It is a silly letter to write but there is nothing against a solicitor writing the letter to the other side. I would keep the letter to show to the tribunal.

[flooz]

Thank you for your quick reply. Documents being relied upon are to be submitted in 2 weeks time. Should a copy of this letter be included, or is it not relevant?

 

Should we respond to the letter or just ignore it? They have given a deadline for the application to be withdrawn, 'or else' they will apply for the matter to be struck out under Rule 18(7)(b)?

 

I don't believe the matter will fail, but I guess like anything, nothing in life is certain.

 

For future reference (as this whole business is upsetting) can it be requested that all correspondence is made through the ET?

[becky2585]

 

For future reference (as this whole business is upsetting) can it be requested that all correspondence is made through the ET?

 

Unfortunately not. Correspondence is usually a must with litigation and the Tribunal wouldn't want bogging down with petty correspondence!

 

On what basis are they proposing to try to strike the claim out? I presume little prospects of success?

[flooz]

Thanks for responding becky. They have stated the reason as being "no chance of winning". But surely that is exactly why the case is going to hearing, for THEM to decide who will win.

 

It's a slightly complex case, and they are claiming that as the business was closed at time of transfer, TUPE doesn't apply. But the business was only closed on compassionate grounds and only for 3-4 weeks. I could give more info, but I don't want to put too much on a public board that would identify the case.

[becky2585]

Mmm, that's true, but there are some claims brought which have no chance of winning and should never have been brought in the first place, which is why the ET has the power to strike some out.

 

It sounds as though this case should be allowed to proceed to a full hearing, though - TUPE is too complex an issue to be determined without a hearing, I think. It is indeed a common scare tactic.

[flooz]

I think it is too. My friend doesn't have legal representation and they know that. They've also highlighted the £500 fees deposit the ET can ask for, again, I think to try and scare.

 

Do you think we should respond to the letter?

[becky2585]

I don't see why she should! If they make a formal application to the ET though, clearly she should reply at that stage!

[flooz]

OK, thank you Becky. We shall ignore it but respond to the ET if they do make an application.

[flooz]

I'm helping someone with an ET claim in relation to a TUPE situation.

 

The respondents solicitor has applied for the case to be struck out on 2 points;

Failure to exchange documents within the timeframe, and

The case has no reasonable chance of success

 

There was confusion on the exchange of docs and they were sent to the ET within the timeframe, as it wasn't clear they were to be sent direct to the other side. They were sent to the other side as soon as the mistake was realised with an explanation and an apology.

 

Surely the whole point of a tribunal is for them to decide who is right and wrong?

 

What happens with this application to strike out? Can the ET just agree to strike out or do they have to write and ask for any explanations?

 

Thanks for your help.

[lbruk]

The solicitor for the respondent will always ask for it to be struck out, no matter how good your grounds are, its their jobs to limit the respondents liability. If the ET want an explanation, they will ask for one. I wouldn't worry about it too much, there really is nothing you can do until they ask the question, but it would be worth having a statement drafted explaining your position.

[flooz]

Thank you ibruk. I can't see the point of requesting it to be struck out purely because surely the whole point on going to a tribunal is because the 2 sides can't agree! But the late exchange of docs did happen :-s

 

TBH I'm amazed that the employers solicitor hasn't advised them to accept responsibility, with the evidence we have in docs (and in theirs too) it would be virtually impossible to say 'a relevant transfer' hasn't happened.

[lbruk]

Until the tribunal date is set, they will try to get it struck out. The solicitor may have advised that, but the respondent doesn't want too, and therefore the solicitor is just doing what they can.

[flooz]

OK, thank you. Am currently preparing a letter to the ET stating why it shouldn't be struck out. Haven't a clue what to put at the moment, but hopefully I will gain inspiration as I type! ;-)

[flooz]

Good evening.

 

Without boring you with all the details, can someone point me in the right direction to a possible unfair redundancy issue. i.e. The job isn't 'redundant' but the owner of the business wants his daughter to work instead of the employee (he's intimating that the daughter is 'helping him out').

 

I've a feeling that I've read something that implies this would be an 'unfair' redundancy, but I need to know what legislation to read and research, that would confirm that.

 

Can anyone advise please?

[becky2585]

You won't find anything that specific, but general redundancy principles would still apply...

[Emmzzi]

Positions are made redundant, not people, which is usually an academic differentiation but not here.

 

If the job is still there you cannot just be let go.

 

The question is, what can you do about it? Worst case he claims economic downturn and downsizing, pays you off, then claims an upturn six months hence, hires offspring, and there's not a damn thing you can do.

 

How would you evidence the work was still there?

 

The directgov site is usually quite good for explaining employment law in simple terms.

[flooz]

Thank you both. It's a complex situation, and part of an ongoing ET case, involving TUPE. The business owner is denying liability for the employee anyway. But has mentioned that, in any event, if a TUPE occured, the employee would have been made redundant immediately, as he doesn't 'employ' anyone. But, I'm pretty certain that the daughter is paid (difficult to prove though) and is doing the same job, hence my question.

[flooz]

Good afternoon.

 

I have recently acted as a lay representative at an ET on behalf of a friend of mine. In short, we produced records of personal conversations, which proved the employer was 'being economical with the truth'.

 

The employer, has taken the bundle of documents and is show showing them to any tom, dick or harry, which is having repercussions on both myself and myfriend, for 'betraying confidentiality'.

 

Obviously, had the employer not lied in the first place, none of the personal documents would have needed to be revealed, but alas, others can't see that.

 

My question is, quite simply, should the documents remain confidential to the ET, or is it absolutely fine for them to be shown around?