Tribunal advice needed - complex question

[RCW]

exactly - my point is they can't pin the ET1 deadline for Unlawful Deduction of Wages to the 28th when the salary was almost never paid on the 28th. In fact, over 6 preceding months the salary was paid by the 28th only once, late on all other occasions.

 

It's a Crux point because if the expected payment date was Apr 2nd then the ET1 is in time. Realistically I was expecting it even later than the 2nd.

 

Was this your understanding of my Q?

 

Let me know - it might be another dead point and happy to concede/drop if it is.

[Pusillanimous]

My view is that you have a strong case here. Calculate the average date you received your salary and then argue that under common law and practice this means the real salary date was the 3rd every calendar month or whatever, therefore it was reasonable to wait until that calendar date before submitting a claim or finding alternative means of income. If the last three payments were significantly later than normal, you could construct an argument the other party did this on purpose in a cynical attempt to frustrate any claim you might make, knowing in advance, as they appear to have done, that s57 (or whatever) kicked in. Emphasise that it is a principle that a party should not gain directly from an act of bad faith. It was reasonable for you to wait until the Xth. Make sure you use the word "breach" re the late January payment.

 

Don't forget to check the calendar to see whether any of the salary due dates fell on a weekend or bank holiday, in which case, you should have had it sooner, not later.

Edited October 9, 2013 by Pusillanimous

[RCW]

Next question... do witnesses need to attend in person? Or will a signed written statement suffice?

Edited October 9, 2013 by RCW

[mariefab]

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

[RCW]

Yes

[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.

[becky2585]

I would recommend bringing anyone who provides a statement to the hearing. Some judges won't even read the witness statement if they aren't there in person!

[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.

[Pusillanimous]

mariefab: Bravo!

[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

[becky2585]

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?

 

There's no black and white answer here I'm afraid, and I've never come across this scenario in practice!

 

I would think, using basic legal principles, that a failure to pay wages on time is certainly capable of amounting to a fundamental breach (or a series of breaches as would be the case here) as otherwise, the term "in or around" in a contract would be meaningless and clearly the courts wouldn't permit wages to be held indefinitely. The two questions I'd ask are firstly, whether ten days was long enough to be capable of amounting to a fundamental breach (which IMO could go either way) or as may be more relevant here, whether the OP resigned in response to an anticipatory breach - ie, feeling that the withheld wages would never be paid, which would give rise to a constructive dismissal scenario IMO. On balance therefore, just based on gut feeling, I do think a fundamental breach occurred.

 

However, the OP would still need to unequivocally accept the breach. So it then turns to whether the conversation of "I've started another job" was capable of amounting to unequivocal acceptance of the breach - and assessed objectively, I can see people finding either way so I think it's very unpredictable.

 

There is an EDT (the later date) on record which is helpful, so the ET would have to find a reason to vary the termination date, and I don't know which way it will swing as I can see valid arguments on both sides!

 

Whether there is a garden leave clause in the contract and a clause preventing work elsewhere will also need to be looked at, I think.

[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?

[RCW]

You guys are spectacular.

 

Thanks for the additional bits - I have pretty much completed the doc - first submission deadline is tomorrow so just 24hrs remaining.

 

so... DOES ANYONE KNOW HOW SUBMISSION DEADLINES WORK?

 

I have two deadlines:

 

1. Documents
   
   

14 Days before the date of the hearing the parties shall liaise to agree the contents of a single paginated bundle of documents in relation to Preliminary Hearing for the use of the parties, the tribunal, and the witnesses at the hearing. Two copies of that bundle should be brought on the day of the hearing.

 

• Witness Statements
  
  

7 Days before the hearing the parties are ordered to have prepared and exchanged comprehensive written statements of all those who will give evidence in relation to Preliminary Hearing, at the hearing. Two copies of each witness statement should be brought on the day of the hearing.

 

 

Questions on the submission deadlines are:

 

(1) PHR is 28th Oct. Is the Docs submission deadline 23:59 13th Oct (tomorrow) or 23:59 14th Oct (Monday)?

 

(2) Do I need to submit the case doc outlining my argument by the first deadline or the second? Is that "my statement"? or "a Document"...?

 

Or do I just need to read it on the day?

[RCW]

also - is there an accepted process for "...liaising to agree the contents...".

 

I was planning to collate all my separate docs into a single indexed evidence doc and email it to the respondent's solicitors with the Tribunal centre in Cc.

[RCW]

MarieFab - I've just seen your questions in#62...

 

1. No. Jan salary payment was for Jan only.

2. I was offered the new job in Feb and originally expected to start early Apr. I brought forward the start date since I had not received my salary and needed to secure an income.

3. The Feb salary was always presented as a late payment. I.e. "we should have it paid soon we just need to sort out XXX, etc". They called me in for a meeting at one of the shareholders offices on the March 5th and there was a verbal commitment to paying it as soon as possible but nothing in writing.

[becky2585]

Both deadlines are the end of a Monday!

 

Your witness statement should be exchanged 7 days prior - ie, the full story relating to the preliminary issues, in chronological order with numbered paragraphs, referring to pages in the bundle where appropriate.

 

A statement of case, or a skeleton argument, should be provided beforehand if you're using one (as well as copies of any cases) and it should ideally be sent within 7 days, but on the day if you can't, ensuring copies are available for the judge and the respondent.

 

Don't email the ET that documents - send them all to the respondent. If they fail to include your documents, again make sure you take adequate copies on the day.

[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?

[becky2585]

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?

 

It really depends on how you view the situation! But my concern would be that this could damage the OPs argument.

 

The Respondent is arguing that the contract ended at least a week prior to that - so if they had taken disciplinary action, or sought an injunction, that would be contrary to their argument that they believe that the OPs employment terminated in either late Feb or early March as it would quite clearly point to an enduring employment relationship. Clearly if they had done so, that would have been very favourable to the OPs case, pointing to a later termination date as the contemplation of the parties at the time would have been that the OP was still employed.

 

It would have been a good argument in a scenario where they were arguing for limited compensation though, for example, rather than arguing to the contrary that the relationship had ceased altogether!

[RCW]

Hi guys - no update for a few days but if you're interested I submitted my document bundle on Monday. I heard nothing from the other party.

 

I then received a note on Tues from the Respondent's solicitor saying they were not aware of the case management order and "could I forward them a copy".

 

Brilliant.

 

I dropped a note through to the Tribunal outlining my position and their lack of adherence to the CMO. It outlines clearly in the CMO that failure to comply is an offence liable on summary conviction to a fine plus a review of the party's further participation in the proceedings. Hopefully they take this kind of stuff seriously, particularly since it is a second offence (they submitted the ET3 3 weeks late)... and in light of the respondent's main argument being that I missed the deadline.

 

Will update as/when progress happens!

[steampowered]

It outlines clearly in the CMO that failure to comply is an offence liable on summary conviction to a fine

 

It does???

[RCW]

Yep... the footnote in the CMO states as follows:

 

(1) Any person who without reasonable excuse fails to comply with an Order to which section 7(4) of the Employment Tribunals Act 1996 applies shall be liable on summary conviction to a fine of £1000. *

 

(2)*Under rule 6, if this Order is not complied with, the Tribunal may take such action as it considers just which may include (a) waiving or varying the requirement; (b) striking out the claim or the response, in whole or in part, in accordance with rule 37; © barring or restricting a party’s participation in the proceedings; and/or (d) awarding costs in accordance with rules 74-84.

[becky2585]

It does???

 

Yes, some tribunals send this out as standard - I've had a few lately.

[steampowered]

Yes, some tribunals send this out as standard - I've had a few lately.

 

Interesting, thank you. I've not seen this before but it is certainly what s7 (4) Employment Tribunals 1996 Act says.

[Pusillanimous]

Has anyone ever been fined £1,000?