Tribunal advice needed - complex question

[mariefab]

Did your contract say anything about gardening leave?

If so, can you quote it here?

[mariefab]

You say that the office closed and you were put on garden leave on 15th February.

They say you resigned without notice on that date.

 

Do they deny that the office closed on 15th February?

[mariefab]

More questions:

 

1. If they are claiming that you resigned without notice on 15th February; why aren't they claiming this date as the EDT?

2. What did you state in any communications to them about their non-payments of notice/redundancy pay before you submitted your ET1?

3. What exactly did the 'Re: Redundancy' email say.

[mariefab]

P.S. There was a Court of Appeal case in 1998, Hutchings v Coinseed , which may be helpful.

It appears to be unreported, but there are several references to be found on Google (and maybe Becky could have the resources to access the case?).

[mariefab]

Even more questions:

 

1. Did you receive a P45? If so, what was the 'leaving date'.

2. Did your contract of employment state that the employer must give you 3 months notice?

3. Is the other employee, dismissed on 2/1/13, prepared to be a witness?

 

Back to the 'Re Redundancy' letter:

1. Does it refer to any dates?

2. Can you please quote in full exactly what it says about discharging restrictive covenants....

[mariefab]

Is establishing the EDT the only issue to be determined at the Pre-hearing review in late October?

If so, are there any EDT dates suggested by the Respondent other than:

2nd January

15th February

11th March

[mariefab]

If you like, I can prepare an outline for you to use/refer to at the hearing.

 

Can you please look through all your letters/emails etc. to see if there is anything written by you or the Respondent that would be inconsistent with the following statement.

 

" I commenced employment elsewhere because:

1. I needed the money.

2. I learned that, if I eventually had to make an Employment Tribunal claim to recover my losses, I would be required to demonstrate that I had made every reasonable effort to mitigate them. "

[mariefab]

I don't think so.

 

An example of 203(1)(a) application would be to void a contractual clause that says the employer only has to give 1 weeks notice to an employee who had worked for them for 10 years; because s.86 of the Act makes provision for minimum notice periods.

 

Can you tell me on what date the Respondent discovered that you had started new employment.

[mariefab]

When you told them of the new employment did they indicate:

That they considered that you had breached the gardening leave clause.

That they would be starting disciplinary procedures against you/ dismissing you because of the breach.

That you had brought the contract to an end by commencing new employment.

If so, on what date?

[mariefab]

Did they first come up with the fundamental breach nonsense in the ET3?

If earlier, when?

[mariefab]

OK, First draft...

 

On 2nd January 2013 the respondent informed me that my role was redundant.

My contract of employment requires my employer to give me a notice period of 3 months.

Therefore, as notice commences the day after it is served, the effective date of termination was 2nd April 2013.

My ET1 was submitted, in time, on 1st July 2013.

 

The Respondent did not propose any alternate EDT date until after receipt of my ET1.

 

In the ET3 4 different EDT dates are suggested, by the Respondent, in order to make the submission of the claim out of time:

2nd January 2013

15th February 2013

28th February 2013

11th March 2013

 

1. 2nd January 2013.

My dismissal on 2nd March was not without notice.

My contract entitled me to the 3 months notice given.

I was not paid in lieu of my notice period, nor was this suggested.

I continued to attend the workplace until 15th February.

*See witness statement (WS1)

 

2. 15th February 2013.

I did not resign on 15th February.

I was informed (verbally) that I was being put on gardening leave.

The reason given was that the office was closing.

No-one suggested that I was being dismissed (again) on this date.

I believed that I was still within my notice period but, because my employer had no work for me to do, I wasn't required to attend the workplace.

 

 

3. 28th February 2013 & 11th March 2013.

The Respondents state that they fundamentally breached my contract by failing to pay me on 28th February.

They claim that by commencing new employment on 11th March I accepted the breach and thus brought the contract to an end.

The Respondent didn't inform me that they considered that they had fundamentally breached my contract so as to bring it to an end.

Nor did I inform the Respondent that I believed that they had done so.

If the Respondent contends that the failure to pay me amounted to a potential constructive dismissal; I would suggest that my failure to resign, in response, at any time affirmed the contract.

 

I commenced employment elsewhere because:

1. I needed the money.

2. If I eventually had to make an Employment Tribunal claim, I would be required to demonstrate that I had made every reasonable effort to mitigate my losses.

The Respondent had, in a letter headed 'Re: Redundancy' on 14th January, rescinded any restrictions in my employment contract governing future roles with competitors.

* See letter (L1)

So, I found work so that I could pay my mortgage etc.

 

I considered that I was still within my contractual 3 month notice period up to and including 2nd April and continued to hope that I would be paid the amounts due.

So, when the Respondent emailed asking for my opinion on work situations I responded with my suggestions on *list all dates*

* See emails (E1), (E2)....etc.

 

On 18th March I informed *name* (one of the Respondent's directors) that I had started new employment.

He/She apologised that the outstanding salary had still not been paid and congratulated me and wished me well in the role.

 

The Respondent didn't inform me that they considered that by commencing new employment I had brought my contract to an end.

The first indication I had that the Respondent considered my employment had ended earlier than 2nd April 2013 was in the Respondent's ET3.

I don't consider that the Respondent should be permitted to rely on what they describe as their own fundamental breach of contract to retrospectively alter the EDT when:

I wasn't even aware that it was such a breach,

I didn't resign, or otherwise indicate that I considered the contract had ended, in response to it.

Edited October 8, 2013 by mariefab

[mariefab]

Are you asking about the employee who was in the redundancy meeting with you on 2nd January?

[mariefab]

Then I would say that it's important that he/she attends because if you fail at this hurdle it's probably all over.

It is always best to have a witness provide a written statement and also attend to give evidence in person as more weight is attached to evidence where the witness can be cross-examined.

Also, for all you know the Respondent could be bringing a witness to say that you were dismissed without notice on 2nd January.

 

The PHR is to decide the EDT, so he/she can confirm some or all of the folllowing:

You were told that your role was redundant on 2nd January.

You weren't dismissed without notice.

PILON wasn't mentioned.

The office closed on 15th Feb.

Late payment of wages wasn't unusual.

Possibly other things e.g. you carried on at work until 15th Feb, you didn't resign, garden leave etc.

[mariefab]

I can't edit my earlier post; so here's a re-worked section 3.

 

3. 28th February 2013 & 11th March 2013.

The Respondents state that they fundamentally breached my contract by failing to pay me on 28th February.

They claim that by commencing another employment on 11th March I accepted the breach and thus brought the contract to an end.

The Respondent didn't inform me that they considered that they had fundamentally breached my contract so as to bring it to an end.

Nor did I inform the Respondent that I believed that they had done so.

If the Respondent contends that the failure to pay me amounted to a potential constructive dismissal; I would suggest that my failure to resign, in response, at any time affirmed the contract.

 

While I was still working at the office, January's wages were paid 11 days late.

It wasn't unusual for this to happen.

When February's wages weren't paid on 28th February I thought they were going to be paid late again.

I always expected that February's wages, and the subsequent wages due for the notice period, holidays and redundancy, would be paid eventually.

 

The Respondent had, in a letter headed 'Re: Redundancy' on 14th January, rescinded any restrictions in my employment contract governing new employment.

*See letter (L1)

 

The office had closed; so I knew that the Respondent wasn't going to require that I actually attend the workplace during the rest of my notice period.

I commenced additional employment elsewhere because, in the event that there was a longer delay before payments were made, I needed to have money coming in to pay my mortgage etc.

 

Taking this role didn't render me unavailable to perform work for the Respondent.

Up to and including 2nd April I had a continuing obligation to carry out any work tasks required by the Respondent.

So, when the Respondent sent such tasks, by way of emails asking for my opinions on work situations, I responded with my suggestions on *list all dates*

* See emails (E1), (E2)....etc.

 

On 18th March I informed *name* (one of the Respondent's directors) that I had started new employment.

He congratulated me, wished me well and apologised that the payment due on, or around, 28th February hadn't yet been made.

The Respondent didn't inform me that they considered that my commencing new employment brought my contract to an end.

 

The first indication I had that the Respondent considered my employment had ended earlier than 2nd April 2013 was in the Respondent's ET3.

I don't consider that the Respondent should be permitted to rely on what they describe as their own fundamental breach of contract to retrospectively alter the EDT when:

I wasn't even aware that it was such a breach,

I didn't resign or otherwise indicate that I considered the contract had ended in response to it.

I affirmed it by continuing to carry out work tasks for the Respondent when required.

[mariefab]

Further to your earlier, 'trying to think of a way to avoid being nailed with their accepted breach argument...' I'd like to ask Becky what she thinks of the following:

 

In view of the fact that it wasn't at all unusual for wages to be paid late (January's paid 10 days after the 28th and late payment in 4 out of 5 of the preceding months); can failure to pay February's wages on the 28th really be considered a fundamental breach of contract?

 

RCW started his new job on 11th March.

But it's likely that, after deciding to look for new employment, job seeking, applying, interviewing etc. would take longer than 12 days.

If so, how could it have been in acceptance of the breach?

Edited October 11, 2013 by mariefab

[mariefab]

Thanks Becky.

 

RCW, a few more questions for you.

 

1. Did January's late payment include wages for the work done up to 15th February?

2. On what date did you apply for new job? (and can you prove it?)

3. When you asked them why they hadn't made the February payment, what did they say?

[mariefab]

In your statement add, in the chronologically appropriate place:

 

Details of the meeting on 5th March and any other conversations after 28th February about late payments.

 

This could help to establish that neither you nor the Respondent regarded the failure to pay you on the 28th as a fundamental breach.

 

 

Also, add a paragraph showing when you applied for, interviewed for and were offered the new job.

 

The Respondent contends that you took up new employment in acceptance of their breach.

If the process of securing that employment happened before the alleged breach occurred how can that be true?

You merely brought forward the start date.

[mariefab]

Becky, what do you think of this:

 

It could be established that RCW breached his contract by working during his notice period.

However, if so, the Respondent was aware of this on 18th March and could have responded by disciplinary action or injunction.

They did nothing.

 

Is it worth adding something along these lines in the statement just in case the issue of RCW's breach of his garden leave clause arises?

[mariefab]

Steampowered is right, you can't use anything related to the compromise agreement.

 

You might be able to use the 'affidavit'.

It depends on several things, starting with, what exactly do you mean by 'on public record'?

 

As for the documents they've requested relating to your start date:

What's the date on your offer letter?

If the date is before 28th February; it's to your advantage to show that you procured new employment before their alleged breach.

Although it'll probably show a start date in April, send it anyway.

But take half a dozen copies of it with you to the hearing in case they don't include it in the bundle.

 

Unless you have another document from your new employer confirming your start date, you'll need to send a copy of the first page of your contract.

[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?

[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?

[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.

[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?

[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