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Employment Issue - shooting the messenger ? Advice / Suggestions


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Hi

I work for a libyan registered training contractor in Tripoli as training supervisor. I was asked by my director to seek a new trainer from the uk to work a standard 6- week on + 3 week-off work cycle, which i duly did. i explained and described the other standard details of the contract (which all other trainers have) to this fellow and then passed over the next stage of recruitment to the director who, as far as I know, issued him a formal contract which I supposed both parties had signed and agreed to. Suffice to say, I was not the official contract-signing party since I am just another employee of the company. Neither did i see the contract he must have signed.

 

Until he arrived back in libya for his 2nd cycle everything was going well but then he claimed to fall sick and had to return to the UK for medical treatment. I contaced my director suggesting that he return to the UK immediately because there was no sense in having him suffer at work.

 

She subsequently arranged to have him fly home on 9 September- which was 23 days into his 42 day on shift . He had been in the UK for a couple of days getting medical consultations when I was informed by the director on September 12 that the contract with the client (expiry at end of september 2010) had not been extended and that we were all to leave as of october 1st.

 

Upon the director's request, I emailed this fellow and explained the situation; saying that the director had told me that there was no need for him to return as the contract was not being extended. The director also wrote to him confirming this and promising to pay him for the days he had worked as well as accrued paid- leave entitlement of 12 days (half of 23 days worked) which he received at the end of September..

 

Within a day or two, I received an email from this fellow accusing me and the director of lying and wanting to get rid of him while he was away for medical treatment.

 

I wrote back explaining this was not the case and that we were all going to have to leave on october 1st. What followed was abusive email after abusive email accusing the company of unfair dismissal and being 'cruel'. He also contacted the client training coordinator to ask if indeed the contract had not been extended. Suffice to say that the director of the contractor was furious with this fellow when she found out what he had done.

 

Then, on 28 september, we received information that the contract had indeed been extended for another year at least. Relief all round, as you can imagine.

 

However, the director has refused to take this felliow back because of the way he behaved while in the uk (accussations of lying, verbal abuse, directly contacting client etc).

 

Because this fellow, now in the UK, is finding it impossible to get any results from the director in libya, he is now trying to get compensation from me personally by claiming that I had 'recruited' him initially so i am responsible. I have today received a formal complaint (Form ET1) against me from the employment tribunal in the uk in which he is claiming unpaid notice pay from me personally..

Does this fellow have a case, do you think ? Does the UK Employment tribunal really have jurisdiction to handle such a case ?

 

any advice appreciated.

 

Forrest

Edited by forrest5
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I would not have thought so. If you had simply ''recruited'' him in UK i.e. as a manager or HR manager you would not be liable. He doesnt have much service, and it is company who deem him unsuitable i.e. the ones he had a contract with, not you..

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I suppose it depends on your relationship with the company, if you are their employee (and i'm not even hazarding a guess if this is all mute as it may be the laws of their land) then in the uk the company would be sued on most occasions

 

If you act as an agent or contractor then a contractual relationship may exist between this fellow and yourself.

 

I'd get some legal advise as this does not appear as straightforward as "wrong country" of "sue the company"

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To clarify the situation further:

 

This is part of what this fellow has claimed on the Employment Tribunal form (ET1):

"The contract between the company and I has not been signed and they have failed to pay my notice pay. I am therefore holding Forrest (myself) liable for a verbal and personal email contract which he entered into to employ me as a trainer for the company. I have personal emails and a verbal offer of a contract personally from Forrest. I am owed 4 weeks' pay which has not been paid.

 

"The contract states that one month's notice pay in lieu and so this must be the contract tat Forrest offered me personally"

 

 

When I wrote to him about the job, I was just describing the terms; not offering a contract because I had no right to as an employee. But .... how does one differentiate between the two ?

 

best

forrest

Edited by forrest5
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So there is no involvement of any UK company whatsoever? The recruitment was not through any agency or company based in the UK? That being the case I don't see how this can ever proceed through a Tribunal. There are (as far as I am aware) certain employment rights which may be extended to a UK worker carrying out business overseas, but only where there is a substantial UK element to the work (as an expat working abroad for a UK based company, or a UK based employee working in Britain for a foreign based company). Anything else, and the employee would only be able to claim rights under the jurisdiction of where and for whom he was working at the time. On that basis I fail to see how an ET1 has been issued, irrespective of whether against you personally or the employer generally.

 

Sounds a bit iffy to me.

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Ah that clarifies things a little. So if all you did was to explain the nature of the contract and did not make a formal job offer, then how did he know when and where to report for duty? Who paid for his travel to Libya? Do you have a record of the details passed on to the Director?

 

Still fail to see how this could result in a claim against you personally unless you offered a salary subject to conditions.

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I can't recall exactly what i described to him about the position but i did list what all other trainers get including salary, rotation, benefits.I then forwarded his details for the director to formally hire him.

 

His ticket was paid for by himself initially (reimbursed by the company upon his initial arrival) and then from then on travel tickets were purchased by the company on his behalf. He was naturally sponsored for a visa to legally work in Libya by the company; not me personally, of course.

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His (claimant's) completed ET1 form.

Employment Tribunal Advice sheets (Bury St Edmunds)

Notice of Claim

Response form for me to complete

Notes of Notices of Hearing

 

Thanks for reassurance . Still a bit worried, tho

Best

Forrest

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His (claimant's) completed ET1 form.

Employment Tribunal Advice sheets (Bury St Edmunds)

Notice of Claim

Response form for me to complete

Notes of Notices of Hearing

 

Thanks for reassurance . Still a bit worried, tho

Best

Forrest

 

Just to clarify all this...

 

There is a difference between a tribunal acknowldeging a claim and agreeing jurisdiction. The former is that "we got it", the latter is "we can hear it". If the tribunal office is on the ball they will have already flagged issues with regard to jurisdiction - but most are so snowed under now they may not have read it.

 

Assuming you have the ET3 request now (the Tribunal Office has sent you an ET1 and asked for a response) it is very simple. You do not employ this person, you have never employed this person, and you had no intention of employing this person - because you are not, in any case, "the employer", you are an employee. Therefore there is no juridiction. Where you or the company are isn't relevant - you can't be "the respondant". Claims against individuals (as co-respondents) can only be made in cases of discrimination and only under specific circumstances.

 

If the claim is against the company, there is no jurisdiction if the company is not UK registered, has no UK presence, and no connection to UK law. So, for example, if Libyan Airlines (or whatever they are called) has staff based in the UK who are Libyan and signed their contracts in Libya, they are still required to comply with UK law in respect of those employees; and British Airways are expected to comply with UK law for all their staff based in the UK or whose primary work base is the UK even if they work abroad. So basically from your description, on both sides of the argument it appears your bases are covered.

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I am a barrister specialising in employment law, and only represent employees. My advice on employment issues is advice - not legal opinion - and is based only on the facts you provide. If you want an accurate assessment of your case and prospects, you should get legal opinion from a lawyer - not a public forum. Anything I tell you is for guidance only, and is based on my experience of the law in the context of what details you provide.

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