What happens to ET claim when Respondent is "dissolved"?

[Penny's_Dad]

Hi

I would really appreciate the forums suggestion with this problem. I was made unemployed in a "sham" redundancy. Immediately, I filed an ET1 claim etc, etc. The Respondents response was to close the business and file with Company's House to be removed from the Companies Register - (obviously they thought that they had a strong case against me). I applied to Companies House to have the "dissolution" put on hold until after the Employment Tribunal case. But because of a error within Companies house, my second application was lost and Respondent was allowed to be removed from the Register of Companies. Now the Respondent has asked the Tribunal to have the case dismissed. Does anybody have any suggestions about what to do next?

[SarEl]

I am afraid that there is nothing that you can do. The company is the legal entity that employed you and it no longer exists. On that basis there is no employer to sue.

[diskmandave]

But because of a error within Companies house' date=' my second application was lost and Respondent was allowed to be removed from the Register of Companies.[/quote']

 

Is Companies House not legally accountable for act/s of negligence??

[elche]

Hi

 

Whilst it may preculude the ET claim if there is no-one to identify as a defenadand. You may be able to claim some monies from the national insurance fund. Different definitions of 'going bust' exist depending on the type or organisation your employer was:

 

 

• if your employer is a company, or a limited liability partnership, insolvency means administration, liquidation, receivership, or a voluntary arrangement with creditors
  
• if your employer is an individual, insolvency means bankruptcy (sequestration in Scotland) or a voluntary arrangement with creditors
  

The insolvency practitioner can be called by one of the following terms depending on the type of insolvency:

 

• administrator
  
• liquidator
  
• receiver
  
• supervisor (of voluntary arrangement)
  
• trustee (in bankruptcy)
  

Your rights if your employer is insolvent : Directgov - Employment

 

Now provided you were an employee at the effective date that the employer officially went into administration, then you should have satisfied the legal definition of redundancy.

 

Redundancy happens when the job ceases to exist s.139 ERA 1996.

 

The question is, during administration when does a job 'cease to exist'

 

It would be prudent to contact the NIF (as they will be the ones paying the award), and checking what criteria they apply as regards effective dates, get advice on completing RP1 etc

 

0845 145 0004

 

Hope this helps

 

Che

[SarEl]

On the other hand, according to the OP's post they were made redundant (allegedly a sham) and the employer dissolved thereafter. So the job ceased to exist before the employer dissolved, whether fairly or not. There is now no legal entity to act as the respondant, so whether the redundancy was fair or not is moot. Assuming that the OP was paid whatever redundancy payment was due (whiich I am, because they have not alleged that monies were not paid - just that the redundancy was a sham), then there is no monies owed. The OP was not an employee of the company when it went "bust" - because they have alreday stated that the company dissolved after the redundancy.

[elche]

On the other hand, according to the OP's post they were made redundant (allegedly a sham) and the employer dissolved thereafter. So the job ceased to exist before the employer dissolved,

 

Do not disagree, which is why I did say, "...provided you were an employee at the effective date that the employer officially went into administration." - which is indeed a point that may not apply here.

 

I suppose we need to ask Pennysdad what they were claiming in the ET - was it just UD or they alleging monies are owed?

 

Also there might be some mileage in a claim against Companies House if you can prove they were negligent and you have as a consequence suffered loss.

 

Think we need a bit more info Dad

 

Che

[honeybee13]

I don't know if this is relevant guys, and it might be covered by Elche's link. I thought there was a government fund for redundancy if an employer went bust. Is that relevant here?

 

My best, HB

[SarEl]

I don't know if this is relevant guys, and it might be covered by Elche's link. I thought there was a government fund for redundancy if an employer went bust. Is that relevant here?

 

My best, HB

 

There is. But it does not seem that redundancy or other pay is the issue. The OP said that they had lodged a claim for a "sham redundancy (I assume unfair dismissal is the claim, but it isn't clear). So it would appear also that they have been made redundant but claim it wasn't a genuine redundancy. The employer dissolved AFTER this, and after the ET1 was lodged. So there is no longer a respondant to answer the claim.

[Penny's_Dad]

Hi Everybody

Thanks everybody for your input, to clarify the situation. The company was dissolved after I was made "redundant" and had filed my ET1 for unfair dismissal with the Employment Tribunal. I'm really interested to know if there are any precedents for a company being restored to the Register of Companies, because of a clear mistake at Companies House? Does anybody know???? Is this loophole being widely used to escape Employment Tribunals? If so how do we "close" it????

[SarEl]

I think your circumstance is rather unusual. Yes, companies often dissolve in order to avoid tribunals (although not in large numbers, admittedly). But they generally get away with it because the claimant doesn't know before the company is dissolved. I have never come across a situation where Companies House have dissolved a company after objections have been made, so I couldn't say for certain whether this can be overturned. There are provisions for a court to restore a company - but it would cost you to do this, and it may not be worth throwing good money after bad. To be honest company law isn't my area, so I'm a bit (as in very) rusty on it. But even if this were to be the case - is it actually worth it. Even if the company was put back into existence, I cannot see how its assets will be recreated. And there is very little point in winning (assuming you do) to be told that there is no money to pay any award. The RPS can make SOME contrubution towards an unpaid basic award in that situation - but it may be less money than it has cost you to get the court to restore the company!

[Penny's_Dad]

Hi,

Please could somebody tell me what a Respondent should do with medical records once the employment tribunal case that required them is over. Are they returned to the Claimant? Or does the Respondent keep them? If the Respondent does keep them is the Respondent responsible for their safe keeping? Is it proper for the Claimant to ask for their return?

I would be interested to hear from anybody else who has had to hand over their medical records at the request of an Employment Tribunal.

Thanks in advance:?:

[Batfink]

Is the Respondent represented (by a legal firm)? If so, what will happen is that their file, plus one copy of everything supporting (bundles, documents etc) will go into storage (secure) for six years. Anything remaining copies will be (securely) shredded.

[SarEl]

It does not help if you start new threads! I assune this is linked to your last enquiry? In which case I am confused, as it seems that the respondent does not exist - so how could they have asked for medical records?

[Penny's_Dad]

First of all, sorry about posting two separate questions; I apologize for any confusion it was not deliberate on my part.

 

Secondly to put the timeline of events into perspective: At the time the medical records were given to the Respondent, the Respondent had not applied for dissolution at Companies House.

 

Whilst the medical records were in the hands of the Respondent the company was accidently removed from the Register of Companies. Since then the Respondent appointed a new legal representative, who has admitted that all the company records have been "lost".

 

I wrote and complained to the Employment Tribunal about this loss, but the Tribunal's response was less than helpful as they said there was nothing they could do. I find this amazing that an person can be instructed by the Tribunal to hand over their highly personal and confidential records to a Respondent, over can then "lose" them without any penalty or comeback.

 

Yes, I realize the documents were handed over to a corporate entity which no longer exists - but surely somebody has to be "responsible".

 

Then miraculously the Medical Records reappeared only to be used as a "bartering piece" as the Respondent sought to - only to disappear again.

Edited May 5, 2012 by citizenB
spacing for easier reading