Won ET claim. Can I move to small claims for outstanding pay?

[k13 wjd]

So, after my ET hearing, I was awarded worker status, hence I was also awarded 3 months of holiday pay. Awaiting payment, but well within the 40 days.

 

Does this worker status, and subsequent rights, give clear passage to a small claim for the remaining holiday entitlement(6 months) and possibly ssp.

 

I can't seem to find decent information regarding timescales etc for such a claim.

 

The employer also has a number of items belonging to me value around £500. Repeatedly asked for these to be returned, and offered to pay for a courier. My last ET paperwork contained a clear reminder about the subject. I presume I can bring this to a claim at the same time, as I have given plenty of time and scope for their return. Not sure how I would prove their existence though....

[steampowered]

Well done on your ET victory. Why didn't you claim for outstanding pay at the ET hearing? I don't understand why you only claimed for 3 months if your actual entitlement was 6 months?

 

Yes, if you issued a small claim you could claim for return of your items at the same time. Proving the items are with your employer may be difficult, all you can do is claim for them and see how they defend it.

[k13 wjd]

sorry, outstanding pay (I meant outstanding holiday pay)

 

the et limit claims from those with worker status to 3 months.

 

my actual full entitlement was 9 months. I claimed 3 at et, leaving me 6 months out of pocket. add on 8 weeks ssp after an accident at work, and the value of replacement items.... and suddenly its a fairly decent sum.

 

What are the time limits for claiming in a court?

[elche]

 

What are the time limits for claiming in a court?

 

Well as such a claim is normally predicated on a breach of contract, then it would be six years.

 

Well done on your ET victory. Why didn't you claim for outstanding pay at the ET hearing? I don't understand why you only claimed for 3 months if your actual entitlement was 6 months?

.

 

I'm also not absolutely clear on this point and why you couldn't claim this in the ET claim as normally whilst the limit is 3 months this type of claim is often pleaded as a linked series of deductions ; which provided that there is not more than 3 months between each 'link' could go back six years.

 

As to a claim in small claims track, you need to look at your original pleadings carefully to ensure what you want to claim in small claims, was not included in these, as if so Res judicata, could mean you cannot have a 'second bite at the cherry' in respect of these in a new forum.

 

Che

[k13 wjd]

The judge, at the prehearing, gave me worker status, and in her judgement, restricted the claim to the last 3 months of employment.

 

this was not a claim for unfair deductions, it was a claim initially related to unfair dismissal, but failed on the worker status( hence the holiday pay being a second prize)

 

They have not paid the judgment amount as yet, they have another 10ish days.

 

My original ET1 did claim for all the holiday entitlement, but surely that doesn't have any effect on a small claim after the event ?

 

Thanks for your input guys.

[steampowered]

As mentioned by Che, there is a real risk that your claim is now 'res judicata'. This is a general principle of civil litigation which states that once a claim has been decided, you are not allowed to re-litigate.

 

Others may have a different view ... but given that the risk of bringing a claim in small claims track is generally quite small, and the amounts we are talking about seem to be quite large, I would be tempted to go ahead and issue proceedings anyway. If the employer does claim res judicata you may want to consider accepting a partial settlement.

[k13 wjd]

They did not use any representation at et, and looking at their productions, I doubt they took advice either.

 

I'll await payment from the et. if they fail to pay in the 40 days then small clsims is a certainty.

 

Other than that I guess it's risk vs reward on the remaining..... if it is classed as already settled, then the other side could counter claim right?

[ericsbrother]

If you can show a separate breach of contract them yes, you can claim. If it is read as part of your ET claim (ie the maximum limit reached at ET) then you wont get any further. You should look at the wording of the judgement and make sure that any claim for unlawful deduction isnt covered and that you are not excluded from seeking remedy.

[steampowered]

I don't think the other side could counterclaim. Realistically the worst that could happen is that your claim is unsuccessful. There is a possibility of being ordered to pay legal costs but this is rare in the small claims track. You would not get the court fees back, but court fees will be small compared to the size of your claim.

[k13 wjd]

to be 100% sure, I'm not sure WHY the et claim is limited to 3 months.

 

I shall need to investigate this closely.

 

I once again thank you all for your ongoing input.

[honeybee13]

to be 100% sure, I'm not sure WHY the et claim is limited to 3 months.

 

I shall need to investigate this closely.

 

I once again thank you all for your ongoing input.

 

Hello there.

 

I'm not sure what your question is, this is from the gov.uk website.

 

1. Taking a case to an employment tribunal You can take your employer to an employment tribunal if you think they’ve treated you unfairly, or broken the law.

The tribunal is independent, and could order the employer to pay you compensation if you win your case.

You usually have to apply to the tribunal within 3 months of your employment ending, or the problem happening at work.

HB

[steampowered]

The ET claim is limited to three months because section 23 of the Employment Rights Act 1996 says so - http://www.legislation.gov.uk/ukpga/1996/18/section/23

 

The time limit in court is six years, assuming that your court claim is not res judicata.

[honeybee13]

Thank you SP, useful to know.

 

HB

[k13 wjd]

Thanks for that link, clears up the 3 month issue.

 

R.E res judicata, is there any specific wording in the ET judgement I should be looking for to clarify.

 

I'm not 100% on res judicata, but my understanding is that it means a claim has been brought forward, and has been resolved in. A court, so hence can no be brought forward again. Kind of bloke double jeopardy?

[k13 wjd]

Judgment

 

Respondents shall pay the claimant the sum of xxxx being the holiday pay due to the claimant from xxx to xxxx.

 

Employment judge xxx had indicated in a previous judgement that this was the only outstanding claim the claimant could make( there was a claim brought forward for unfair diss which was dismissed based on worker status.)

 

Last wording. In the circumstances the tribunal award the sum of xxxx being holiday pay due to the claimant.

 

 

No mention of further claims etc, no compromise agreement.

[steampowered]

Yes - res judicata is kind of similar to double jeopardy. The basic idea is that a statutory tribunal has already determined your claim so it should not be brought forward again.

 

As the award determined the holiday pay due I suspect the issue of holiday pay is probably res judicata. You may be able to have a go at arguing that the ET judgment only covers 3 months of holiday pay and not all holiday, I am not sure if there is any case-law on this point.

 

If the employer is unrepresented and does not take proper legal advice, they might not pick up on this point. It may be worth filing a claim anyway and taking your chances ... a decision for you to make based on the likely court fees (there will be an issue fee, allocation fee and hearing fee payable if the case proceeds all the way to a hearing, see HMCS leaflet EX50).