Tribunal advice needed - complex question

[RCW]

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

Edited October 25, 2013 by RCW

[mariefab]

I wouldn't worry too much about the cases they've mentioned.

Each case is adjudicated on it's own particular facts; so referring to sections of earlier cases out of context doesn't necessarily help them.

As it turns out some of their of their references may actually help you.

But before we get into that...

 

Can you look at all emails, letters etc. that you sent or received up to 3rd April.

In any of those communications:

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?

Is there anything suggesting that the payments you expected were not going to be made at all?

Or, anything confirming that the payments would be made at a later (even if unspecified) date?

Can you give an example of one of the email work requests and it's response?

[RCW]

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]

Edited October 25, 2013 by RCW

[mariefab]

If you received that (or any similar) email while you were still attending the office I can't imagine why your response to it would not be considered 'work'. It's obvious from the timing of the email trail that Director 1 considered it appropriate to get your input before speaking to Client Y. I assume that it would have been part of your continuing role to advise him on such maters.

So, I can't see why it becomes any less 'work' because you were on garden leave.

 

Your response is consistent with your continuing obligation to be available for work during your notice period (as opposed to the sort of response that could be expected from an employee who had terminated his contract in acceptance of his employer's fundamental breach).

It could be said that by responding you affirmed the contract

Edited October 25, 2013 by mariefab

[mariefab]

Can you have another look at the emails/letters I mentioned earlier as if you were trying to prove the Respondent's case for them.

I ask because the 'Re Redundancy' letter you posted at #20 could be spun, although countered, and you don't want to be caught by surprise at the hearing

'As per our conversation of the 2nd of January, I apologies again that your time with XXXXXXX has ended in this manner.'

 

 

Does the Chief Exec. state in his witness statement that you were given 3 months notice?

[RCW]

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)

[mariefab]

Do you mean emails like those in #103 were redacted from the bundle?

If so, take 6 copies of each with you to the PHR.

They have nothing to do with settling a dispute therefore they don't qualify as 'without prejudice'.

Don't allow the Respondent to disadvantage your case by taking their word for it with these, or any other, documents.

If there are any other documents that you're unsure about in this regard take copies of them with you and ask the Judge whether or not without prejudice applies.

[RCW]

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.

[mariefab]

Well, if you said that in the event the Tribunal strikes out your claim (because they decide it was submitted out of the 3 month time limit and therefore they don't have jurisdiction to entertain it); you would progress to court that has (for example) a 6 year time limit, I don't see why they would perceive this as a 'threat'.

Surely, it's simply a right.

 

For 'without prejudice' to apply, there must first be a dispute.

So, anything produced before they said something along the lines of, "We're not going to pay you"' or you saying, "I was unfairly dismissed" isn't likely to be 'without prejudice' because it wouldn't have been produced in an attempt to negotiate the settlement of a dispute.

 

Does the Chief Exec. state in his witness statement that you were given 3 months notice?

[RCW]

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.

[RCW]

As it turns out some of their of their references may actually help you.

But before we get into that...

 

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

[mariefab]

If they suggest that the CEO didn't have authority to make you redundant, their citing Newman helps because it refers to Warnes.

 

http://www.bailii.org/uk/cases/UKEAT/1992/7_90_1304.html

http://www.bailii.org/uk/cases/UKEAT/1992/7_90_1304.html

 

I really don't see why they believe that Newman helps them.

The EDT in that case was established as the dismissal date because he was summarily dismissed, handed over keys and sent a cheque in respect of notice and redundancy all on the same date.

None of those things happened in your case.

 

I do agree that the EDT is a statutory construct defined in s.97 ERA 1996.

Specifically, in your case s. 97(1)(a)

 

http://www.legislation.gov.uk/ukpga/1996/18/section/97

[RCW]

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]

I think that my earlier suggestion that you use the 'mitigation of loss' argument at all was a mistake.

 

Here's why:

Remember that at no time before the ET3 did the Respondent suggest that they had committed a fundamental breach.

 

I believe that introducing 'mitigation of loss' may be spun as:

Agreeing that they fundamentally breached your contract by not paying you on 28th February.

So, you accepted the breach as repudiating the contract thus bringing it to an (early) end.

Thereafter, you took steps to mitigate your loss by starting a new job.

(When really you just started the new job early to keep money coming in while you waited for the delayed payment.)

 

You would only need to demonstrate that you made all reasonable attempts to mitigate your loss after the EDT.

 

 

However, I think that it may be possible to include an argument in the spirit of 203.

Perhaps something along the lines of:

At no time before the ET3 did the Respondents hint that they considered that they had committed a fundamental breach of contract.

Nor did the Claimant make such an allegation.

The inclusion of this in the ET3 was made in a cynical attempt to retrospectively construct a potential earlier EDT than 2nd April so as to make the claim out of time.

 

The Claimant, operating on the assumption that his notice period would expire on 2nd April (s.97(1)(a) ERA 1996), couldn't have been expected to anticipate that this argument would be raised in August(?).

[RCW]

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]

Why do you think that you're entitled to redundancy pay?

 

You were offered, accepted and started a new job before your statutory notice period.

So, surely you're not entitled to it.

[RCW]

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.

[mariefab]

I don't see why.

Your notice period was your notice period no matter what the reason for dismissal.

You can be made redundant after one week of service.

The 2 years service is only relevant for entitlement to redundancy pay.

 

Ha! I was just looking at the Kirklees v Radecki case that the Respondent helpfully cited.

Check out para. 20, the bold section (not including the last sentence).

I think that assists the last sentence in my post #114.

[mariefab]

Bugger! I was looking at the EAT case,

http://www.bailii.org/uk/cases/UKEAT/2008/0114_08_0905.html

[RCW]

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.

[mariefab]

Happily it's repeated in the Court of Appeal case cited by the Respondent at para. 37(4)

http://www.bailii.org/ew/cases/EWCA/Civ/2009/298.html

[RCW]

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

[mariefab]

No, it isn't that.

It's that the Respondent cited the Court of Appeal one.

They even referred to para. 37!

It's so obliging of them to offer up cases that help your claim, don't you think?

[RCW]

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?

[becky2585]

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?

 

I would always recommend wearing a suit.

 

Perhaps the judges are more stringent with legal representatives, but I have seen a judge in the past tell a barrister off for removing his suit jacket always best to look smart and make a good impression, I feel.