I Won My Tribunal But They Won't Pay

[Hair Bear]

If everyone is happy with this revamped effort, I'll whip it off???

 

"Without Prejudice

 

Dear XXX,

Having gone through the time, effort and stress of a tribunal, it seems that you still have no intention of compensating me, despite the outcome of that tribunal insisting that you must. I want to make it clear that the efforts you have made to avoid having to pay me what I was always entitled to are not acceptable, and will not be accepted. There is no question in my mind that the transfer of the bar was a transaction designed to defraud creditors contrary to section 423 Insolvency Act 1986, and that you have clearly remained in charge of XXX.

 

AAA Limited was dissolved in November 2011 and the "new" operator of XXX became BBB Limited, but this was not a simple case of one company taking over the business from another – the latter company having your surname, and being originally registered at the same address as AAA Limited. The fact that the company changed its address and later applied to be struck off does not erase the coincidence, or your personal involvement, or its implications. Especially since the next “new”company taking over the helm at XXX was CCC Limited, and its registered director is you. Of the several companies you have started up over the years, you also have at least one other registered at the same residence as XXX. This is all on file, of course, not least **** City Council’s licensing department, who list BBB Ltd as the bar licensee from April 2012 until February 2013, when the licence was taken over (before our final Tribunal, by the way) by CCC Ltd.

 

This information – a drop in the ocean to the many facts I have collated, including statements from employees that leave no doubt about your role – I have obtained while preparing legal action against you, which will certainly result in the debt increasing exponentially, since you will beliable for my legal costs. The pursuit of frankly illegal means to avoid recompensing me strikes me as being a severely false economy not just because of the aforementioned, but also the consequences of your actions once this information is given to Companies House, and other relevant authorities.

 

According to Companies House (www.companieshouse.gov.uk/infoAndGuide/windingUpCompany.shtml):

 

“A limited company can request to be closed/dissolved...providing that it meets all of the following requirements:

Not traded within the last 3 months

Not changed the company name within the last 3 months

Is not subject to any legal proceedings, current or proposed

Has not made a disposal for value of property or rights”

 

You have certainly breached at least one of those rules, bearing in mind you were most definitely subject to a legal proceeding – my employment Tribunal. I should also point out that you also had a strict personal obligation to notify all creditors (www.legislation.gov.uk/ukpga/2006/46/section/1006)...

 

A person who makes an...application for voluntary striking off...must secure that within seven days from the day on which the application is made, a copy of it is given to every person who at any time on that day is...© a creditor of the company.

 

In relation to this section, Companies House offers this definition: “In this Chapter “creditor” includes a contingent or prospective creditor” (in other words, me). Moreover, the burden of proof is one you: you need to be able to conclusively prove I received a copy [*I'm not sure I should include this last sentence??*].This section goes on to say:

 

(4) A person who fails to perform the duty imposed on him by this section commits an offence. If he does so with the intention of concealing the making of an application fromthe person concerned, he commits an aggravated offence.

 

(7) A person guilty of an aggravated offence under this section is liable...to imprisonment for a term not exceeding seven years or a fine (or both).

 

‘Unfit conduct’ may also result in your being banned from being a director for fifteen years.

 

There is, however, an alternative. At no time did I wish to see your role as the new owner of XXX to be challenged, or to cause you to incur damaging costs as a result of dispensing with my services. All I ever wanted was a fair level of redundancy – the Tribunal's award of over £16,000 is what happens when one ends up in court. Now that I’m dealing personally with this, my wishes remain as they have always been: to obtain a reasonable redundancy settlement, which along with my costs works out to be £3,900.

 

My recommendation would be that you pay me this figure before the 13th November 2013, as after that date it will be impossible for me to halt legal proceedings, and we will be back to £16,000 plus costs and Companies House involvement [*not sure about putting in this last sentence?*]. Please contact me at this email address... ****@yahoo.co.uk ...regarding your intentions

[Hair Bear]

Reply received.

 

I got the following reply from the other side. Just to remind the good people of this forum:

I sent the other side notification that I wanted money owed, albeit a large reduction, or I would go to Companies House. I should also point out that their beef throughout the Tribunal was that I wasn't actually an employee of anyone but rather self employed (not true). Judging from their response, it is more than clear that they still contend this...

 

"I am in receipt of your undated letter regarding a demand for payment from me on or before 14th November 2013 of £3,900.

 

I am unaware whether you are still represented, but you should know that the case of the Manchester Employment Tribunal No: 2409218/2010 is pending appeal at the EAT. A hearing date to determine whether the appeal shall proceed (which will be heard ex parte) has been set for February next year, and the likely date of a full appeal hearing will not be till August 2014, given the current backlog of cases pending.

 

It is my strong belief that the perverse Judgment of the Franey Tribunal will be overturned, as before, and it will be found that you were working as a self-employed sub contractor - but such a decision is at least 9 months away.

 

If you pursue legal proceedings against me with regards to the Judgment of the Manchester ET, you should be aware that I will make an application for a stay of the proceedings pending the outcome of the EAT appeal which will, no doubt, be granted.

 

You are now on notice that should such an application be made I will seek an order for my costs against you given that I have now informed you of what my actions will be and the likely outcome.

 

In any case, your threat of a claim against me personally is frivolous and, of course, entirely without merit and will be met with an immediate application under CRP 3.4(2)(a)(b). Again I will make an application for costs against you should the application succeed.

 

I note your letter makes several false and malicious allegations against me. To confirm:

 

i) A copy of the request to strike the company from the register was sent to both you and your legal representative in the required time

ii) Your legal representative confirmed to me over the telephone that they were aware the request had been made, same is alluded to in correspondence

iii) The company was not "subject to any legal proceedings, current or proposed" at the time the request to strike off was made, given the date of the Franey Judgment

 

Back to me:

 

He obviously genuinely thinks I was self employed, and whilst I guess this would absolve him in some was of being unscrupulous merely for the sake of it, it doesn't alter the fact that in my opinion he's tried shifting the goal posts in order not to pay. With this in mind, I'd like to know what anyone thinks about the following...

 

He says his company wasn't subject to legal proceedings (and hence why he didn't notify Companies House). This sounds as though he genuinely believes that, because his request to be struck off was made 07/06/2012, and because our final hearing wasn't until 2013, that the rules didn't apply to him. With this in mind, is it worth my responding to his email clarifying the exact rules regarding his being subject to legal proceedings (ie it's not just the date on which you have a Tribunal) and also, to alter his mindset about my being self employed, offer to take him or a representative of his to the nearest tax office and have them tell him face-to-face that I was in receipt of p60s throughout my ten year employment (would the tax office be able and willing to confirm this?).

 

How does that sound? Any other thoughts, or questions, on the subject would of course be most welcome.

[Pusillanimous]

He has clearly been panicked sufficently to get himself a lawyer to research into the matter.It is a typical lawyer's letter so difficult to know if it is faux bravado, or whether he's right. All the threats of costs sounds like he is trying to frighten you off. You need to do some research of your own on the Franey case before you respond, find out how true his claims are. I would lay off the Company Law claims, as he is hardly going to admit to wrongdoing, and concentrate on getting your £17,000. Send his lawyer your bill and ask him for a remittance before things get costly for all parties. He might fork up for a quiet life.

[Hair Bear]

He has clearly been panicked sufficently to get himself a lawyer to research into the matter.It is a typical lawyer's letter so difficult to know if it is faux bravado, or whether he's right. All the threats of costs sounds like he is trying to frighten you off. You need to do some research of your own on the Franey case before you respond, find out how true his claims are. I would lay off the Company Law claims, as he is hardly going to admit to wrongdoing, and concentrate on getting your £17,000. Send his lawyer your bill and ask him for a remittance before things get costly for all parties. He might fork up for a quiet life.

 

Thanks for this, Pusillanimous. The Franey case is our case (Franey is the pseudonym of the Judge - apologies for not pointing that out). It's definitely faux bravado and I've just spotted a giant hole in their reply, regarding Companies House. Check out these two comments:

 

"i) A copy of the request to strike the company from the register was sent to both you and your legal representative in the required time.

iii) The company was not "subject to any legal proceedings, current or proposed" at the time the request to strike off was made, given the date of the Franey Judgment"

 

They totally contradict each other. If he believes his company wasn't subject to any legal proceedings (with me), then for what reason would he send me or my lawyer a copy of the strike off? Answer: you wouldn't. Surely it would be the last thing you would do.

 

Indeed, my lawyer swears he received nothing (I certainly didn't). He found out by accident. Also, I've just rang Companies House up, who told me that my lawyer lodged an objection with Companies House SEVEN weeks AFTER the strike off proposal. Why on earth wouldn't he have lodged an objection at the time of the strike off? Answer: he clearly didn't know about it.

 

The opposition also seem to be fixated that I was self employed, despite my producing a p60 and several wage slips at the Tribunal. Infuriatingly, at the time I genuinely couldn't find any other p60s, but the judge was satisfied with what I gave him. Straight after the Tribunal, I found the rest but didn't think I'd need them. So, here's what I'm going to do. I'm going to get back to the opposition and email them copies of the ten p60s (one for each year I worked there). I'm also going to offer to walk into any tax office with a member of the opposition's side, to get confirmation of my PAYE status. Secondly, I will draw their attention to the strike off slip up. Thirdly, the Companies House representative I just spoke to confirmed that the opposition were 100% classed as being subject to legal proceedings with me.

 

I doubt it, but hopefully all that little lot will get them to cough up. What do you think? Or anyone else out there?

[steampowered]

I don't think the merits of the underlying case have any relevance now. The EAT would only consider evidence presented at the time. He has clearly got the idea you were self-employed so not sure you can convince him otherwise; it is not uncommon for people involved in litigation to put on blinkers and fail to see things objectively.

 

It sounds pretty odd that a 2010 judgment is only being appealed now. The time limit for appealing is 42 days. It sounds like his appeal may have been rejected on paper and he has requested an oral hearing asking the EAT to reconsider their decision to decline permission to appeal. It is difficult to be sure without seeing the documents.

 

Ultimately, if you want him to cough up you may need to begin litigation.

[Hair Bear]

Thank you for your continued contribution, Steampower.

 

The Tribunal began in 2010, the judgment came about in 2012, and their subsequent appeal was heard and rejected in April of this year. My lawyer did tell me that they had appealed, but I just assumed it had petered out.

 

I agree that the chances of him coughing up anything up prior to litigation is indeed slim, but I see no harm in having one more bash? I'd also like to think that if it comes to another hearing, and I can prove that I've already shown him conclusive proof that I was PAYE, legally speaking it might not hold any weight, but 'aesthetically speaking' it won't do him any favours.

 

I'm also determined to shop him to Companies House on the 19th Nov (the final date they have given me), should he again reject my - generous - offer. Would I be correct in assuming this won't have a bearing on my trying to get money out of him via litigation?

[Hair Bear]

PS I nearly forgot. Do I need to worry about this:

 

"In any case, your threat of a claim against me personally is frivolous and, of course, entirely without merit and will be met with an immediate application under CRP 3.4(2)(a)(b). Again I will make an application for costs against you should the application succeed."

[Hair Bear]

I don't think the merits of the underlying case have any relevance now. The EAT would only consider evidence presented at the time. He has clearly got the idea you were self-employed so not sure you can convince him otherwise; it is not uncommon for people involved in litigation to put on blinkers and fail to see things objectively.

 

It sounds pretty odd that a 2010 judgment is only being appealed now. The time limit for appealing is 42 days. It sounds like his appeal may have been rejected on paper and he has requested an oral hearing asking the EAT to reconsider their decision to decline permission to appeal. It is difficult to be sure without seeing the documents.

 

Ultimately, if you want him to cough up you may need to begin litigation.

 

Regarding this February 2014 EAT: how do I go about getting the documentation/finding information about this? Can he have a judge's decision overturned? Am I allowed to present further evidence if it looks like they may well believe the judge didn't have enough evidence to come to the conclusions he did?

 

Also, is it the case that, because he has requested this EAT, he is as yet under no obligation to pay me anything? At the Tribunal I'm pretty sure the judge said he had to pay me x-amount (I think it was £6K) of what he owed me immediately.

[steampowered]

I agree that the chances of him paying up without legal action are probably quite slim but no harm having a further bash.

 

Usually with the EAT you have to appeal within 42 days of the judgment. The appeal then gets sifted to see if there are reasonable grounds for bringing an appeal. If its rejected the applicant can then submit a fresh notice of appeal or request an oral hearing. Only once the appeal has been accepted after passing the vetting procedure does a copy of the notice of appeal gets served on the respondent (you).

 

If this has already been to an EAT hearing I honestly have no idea what he is talking about or what the February 2014 hearing will be, he should not be getting multiple appeals. It doesn't surprise me that the EAT system is overloaded and experiencing delays but a 4 year delay sounds very excessive.

 

The other thing that does not make sense to me is why he is bothering with an appeal if the company has already been wound up and he thinks he is safe.

 

Unless he has been granted a stay of execution, the original ET judgment is enforceable immediately. No need to wait until the appeal has been heard. However if you do bring enforcement proceedings he can ask the court to put the case on hold and delay enforcement while the appeal is heard. If you don't actually have the documents there is not much to go on here, I guess you can call the EAT and ask to get a copy of the documents but if this is still in a sifting stage you might not be able to get them.

 

Am I right in thinking that the Employment Tribunal judgment is against a company which no longer exists and does not name this guy personally? If so you have an enforcement problem, as discussed earlier in the thread. The first thing to do is to go on Companies House and download a copy of the documents (cost £1 each) to see if you can get any information about what assets the company had when it was struck off.

 

The reference to CRP 3.4 (2)(a)(b) is a botched reference to CPR 3.4 (2) (a). CPR 3.4 (2) (b) isn't really applicable. Basically, CPR 3.4 (2) (a) allows the court to strike out hopeless claims with no chance of success without needing to have a full hearing. Frankly people threaten to go for a strike-out all the time, usually it is just hot-air. A strike-out shouldn't happen if you put together a decent, viable claim which is properly pleaded.

 

By the way, you say the judge ordered him to pay the 6k he owed you immediately. Earlier in the thread you said it was 17k ... what was the other 11k?

[Hair Bear]

 

By the way, you say the judge ordered him to pay the 6k he owed you immediately. Earlier in the thread you said it was 17k ... what was the other 11k?

 

The actual total was just over £20K (see below), but the money I would personally keep I worked out at just under £17K. The £6K paid immediately - I might have that figure wrong, but I recall well the judge saying it as he read out the below. Words to the effect of "Six thousand of which must be paid immediately". I took this to mean, you can't expect someone to pay £20K right off the bat, so would have to come to an arrangement, but that a portion of the money had to be paid because it's the right thing to do. Was I hearing things?

 

1) The respondent is ordered to pay the claimant the sum of £2,789.04 as damages for breach of contract (including an uplift of 20% under section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992).

 

2) The respondent is ordered to pay the claimant a basic award for unfair dismissal of £3,162.50 and a compensatory award for unfair dismissal of £10,679.45 (including uplift of 20% under section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992), making a total of £13,841.95

 

2) The Recoupment Regulations apply. The prescribed period is between 18 August 2010 and 12 July 2011. The prescribed element is £10,319.45. The amount by which the total monetary award exceeds the prescribed element is £6,311.54

 

Also:

Unfortunately the judgement was against the company, but I recall my solicitor saying that I am legally allowed to try get money from the director if the company folds. If Companies House agree there's been wrong doing and revoke the strike off, would that make a difference?

 

I emailed the director a second chance to pay a reduced fee last night, giving him until 8pm tonight as a deadline. I don't see him paying, but if you don't try you don't get. Companies House have told me I have until Tuesday to shop him, which I fully intend to do (if/when he doesn't pay).

[Hair Bear]

Solicitor Error:

I'm convinced my solicitor messed up with the strike off. He managed to get the strike off halted initially, but that only lasts for three months and I'm pretty sure he missed the deadline to put in another objection. Should I be annoyed with my lawyer if that's proven to be true, or am I nit-picking?

[Hair Bear]

"The other thing that does not make sense to me is why he is bothering with an appeal if the company has already been wound up and he thinks he is safe."

 

*Think you've hit the nail on the head - he probably doesn't yet think he's safe.

 

"The first thing to do is to go on Companies House and download a copy of the documents (cost £1 each) to see if you can get any information about what assets the company had when it was struck off."

 

I found this on director check...

 

£12,286

Cash

£-54,769

Net Worth

£64,786

Assets

£34,694

Liabilities

 

Regarding Companies House's website: There are several documents I can download and I'm not sure which I'm looking for title-wise, so any ideas on that would be good, thanks. The following is what info there is for free...

 

Status: Dissolved 13/11/2012

Date of Incorporation: 25/01/2010

Company Type: Private Limited Company

Nature of Business (SIC):

96090 - Other service activities not elsewhere classified

Accounting Reference Date: 31/01

Last Accounts Made Up To: 31/01/2012 (TOTAL EXEMPTION SMALL)

Next Accounts Due:

Last Return Made Up To: 25/01/2012

Next Return Due:

Mortgage: Number of charges: 1 ( 1 outstanding / 0 satisfied / 0 part satisfied )

Last Members List: 25/01/2012

Edited November 18, 2013 by Hair Bear
extra info

[steampowered]

I think you misheard. The full 17k or so would have been due immediately. The bit about the 6k is about the Recoupment Regulations. Basically you would need to pay part of your award to DWP in order to cover some of the JSA you were claiming while on benefits after the dismissal.

 

I am not hearing that your lawyer knew about the strike-out. Maybe not immediately but within 7 weeks, and within enough time to apply to have the strike-off halted. Am I correct? What happened to that application?

 

On the Companies House website there will be a list of all filings made by the company since incorporation which you can download for 1 each. You want the last set of annual accounts and it would be good to know what the last filing was.

[Hair Bear]

I downloaded the annual return, which is four pages long but gives zero information in terms of actual money. The date of the return is 25/01/12; there's a SIC code, whatever that is; there's one company director and secretary, the same guy; number of shares is 1, attributed to him, and that's it.

 

Order of events, including my lawyer's efforts to halt the strike off.

 

11/11/2010 My lawyer sets ball rolling.

08/02/2011 Pre-hearing review (he didn't show and used the lamest lie, so was granted a 2nd hearing)

22/07/2011 Re-scheduled hearing (it goes in my favour, there is a case to answer)

09/03/2012 Tribunal (I win but he is granted an appeal and lodges it)

03/04/2012 Five months after its alleged sale, my lawyer receives a note from him to say he sold his bar back in Nov, 5 months ago. This is out of the blue, & I know people who work there who say he never left and is still in command. Investigations show the 'new' company - whose address is the same as the old! - is 'owned' by his brother.

16/04/2012 Remedy. He doesn't show up. He has to pay over £20K.

07/06/2012 He applies to be struck off but we aren't informed and know nothing of it.

20/07/2012 Six weeks later my lawyer finds out about it & lodges an objection, which is granted.

23/10/2012 My lawyer emails to advise me not to contest their appeal due to my not being able to afford a barrister's letter. The appeal isn't about me specifically but technical stuff.

30/10/2012 Appeal hearing. They're told the next Tribunal is only to decide whether I was an employee or self-employed.

27/02/2013 My lawyer informs me that, despite his objecting to their strike off, it has now been granted, but that he is contacting Companies House to put in a strong protest. I think you have to keep objecting every three months. Whether he forgot to object again after the first three months, or companies House didn't accept it, I don't know (I sense the former) but the strike off was granted 13th November 2012, over three months ago.

23/04/2013 The 2nd Tribunal again went in my favour. The other side launched an EAT soon after.

24/05/2013 My lawyer emails to say he is still trying lodge a complaint with Companies House.

09/07/2013 He emails to say Companies House responded with a letter telling him it's tough. Up to this point I - regrettably - didn't take an active part in the legal proceedings, leaving it up to my more-clued-up lawyer, but as time went by I decided to start looking into it myself. Hence the 7-page complaint I forwarded today to Companies House - I think my lawyer was just complaining that we had an on-going case, whereas I also sent details that proves the opposition is still very much running the company.

[Pusillanimous]

To get a peek of the EAT hearing coming up in Feb 2014, contact the EAT and ask if you can have copies of the papers (the copies are extrememly expensive!) or if you can pop in a read them in person (it is a Public Record). Under Section 5.3 of EAT Practice Directions: "Any person shall be entitled during office hours by appointment to inspect and request a copy of any of the following documents" (incl Notice of Appeal).

 

Sounds like an oral hearing, but you should have been informed it was taking palce. Ring up the EAT and inform them you are the Respondent but you have not received a notification of the appeal.

 

To be frank, I would stop communicating with this guy; the threats to shop him comes across as blackmail, as you have a citizen's duty to shop him anyway. He already knows he issued you with P60's, so save this evdience for your High Court bundle.

 

Take your lawyer's advice and lodge a petition against him. Sue him for bankruptcy.

 

If he does not respond to your latest demand then give up and sue. Leave to your lawyers.

[Hair Bear]

Thanks for the info. The "extremely expensive" put me straight off So I might just ring them up like you said, or take a mooch down there, good idea/s.

 

Re the letters I sent him: In my present financial position it just made sense to try that approach prior to any legal moves (not least because he seems well versed in playing the legal system). I checked with Companies House before I contacted him and they were cool with it. He didn't bite, though, so I will have to look towards legal means. Firstly, though, I've now shopped him to Companies House. I pity the guy lined-up going to read my seven-page diatribe

[rightsforme]

With regards to recovery and getting him made personally liable I dont know if this is any help to you but I won my award in ET and respondent had attempted same. At the time I reguarly monitored the status of his companies as he had a number of company names for the same company and therfore I saw that he had made an application to strike off and contacted company house to inform then of the proceedings, so I was able to write in and object to strike off and send in evidence of proceedings. I also made enquiries with the authorities and additionally found that tax and n/i had not been paid by the company and they had no records at all of the company names he was trading under and I reported him to the authorities. Duringthe period of the stay I applied to the courts which only includes a small application fee and is added to the debt along with interest for the director to be made personally liable as he was ouright refusing to pay and didnt think he could be made personally liable. He failed to appear at the hearing and he was made personally liable even though it was a limited company. I still have not recieved my award yet as he still thinks he can ignore it however I contacted high court sheriffs and am informed that I have 6 years from the date of judgement in which to recover the debt which is occurring daily interest and and the cheapest option to try first would be high court baliffs which only involves a small court fee on appliction as it is an ET judgement and they will try to recover the debt for me, if they cannot then I can look at other options such as instigating bankrupty proceedings against him etc which is more expensive.

 

Regarding the appeal I agree this sounds very odd as you do only have 42 days to appeal. I am assisting a friend with an appeal which was rejected at sift and from there you only have a further 28 days to resubmit a fresh appeal, this was also rejected and the only option after this is to submit a request to be heard before the judge which was only submitted a very short time ago and that hearing is to take place this year. Both the ET and the Respondents solicitors have been copied into this by the EAT even though they do not have to attend this part as it is only on whether they will allow it to proceed. If it is allowed to proceed then the respondents have to respond and they have a time limit for that response so I cannot see how he is saying about feb and august 2014 seems something there is not right.

[Hair Bear]

Many thanks, rightsforme! Very interesting stuff. Can you give me more details regarding how you went about getting this information:

 

"I also made enquiries with the authorities and additionally found that tax and n/i had not been paid by the company and they had no records at all of the company names he was trading under and I reported him"

 

Also, I took Pusillanimous advice and found (a little) out about the opposition's appeal - left a message with them and they've just come back to me this morning. The specifics they wouldn't tell me over the phone but they did confirm that 3rd February is all go. They said they have sent correspondence to my lawyer, so I will attempt to prize more info from him. With any luck February will be the end of the matter on that particular score, but I'm not counting my chickens.

[BazzaS]

If they maintain the company is dissolved and it no longer exists as a legal entity - how is the company appealing?

 

Either it exists, and can appeal but is subject to paying what it owes, OR it doesn't exist, doesn't have to pay but can't appeal.

 

Surely they can't have it both ways?

 

If the individual director is appealing, as an individual, is he accepting liability for any compensation still due if his appeal fails?

 

I'm not a lawyer, but might be worth asking your solicitor if this line of argument has merit?

[Hair Bear]

Oooh, I like it - thanks BazzaS ! And if anyone out there knows the law on this matter, even better

[MrHat]

Fascinating read. I will follow with interest but can't offer any expertise I'm afraid.

 

He and his brief must fear that he is liable otherwise, why bother responding to your letter at all?

 

This must be quite overwhelming but it seems this is mirrored on the other side.

 

good luck

[Hair Bear]

Fascinating read. I will follow with interest but can't offer any expertise I'm afraid.

 

He and his brief must fear that he is liable otherwise, why bother responding to your letter at all?

 

This must be quite overwhelming but it seems this is mirrored on the other side.

 

good luck

 

I totally agree with you about why, fear of liability, he responded. And thank for your comments, MrHat. I feel I been very blessed to have so many people go out of their way to pass comment.

[Hair Bear]

HELP - I'VE MESSED UP!

I think I made a huge and costly error when I tried to contact the other side the other day, though not in my first letter but my second. Just so that you can make an informed reply on the matter, I'll have to take you briefly back to the start of all this. On 12th Aug 2010 the owner of the bar approached me to say it was being sold, and that the new owner would be in by Monday 16th August 2010 (but that I would be staying). Just after the new owner took occupancy, however, he rang up the door agency through which I worked and told them my services were no longer required. Hence, as far as the door agency were concerned, my stint with the bar therefore concluded Sunday 15th August 2010. Then the new owner rang me personally to let me know the same, but did agree to let me work out the week (in the event, only 3 days). He didn't make provisions with the door agency for this, paying me directly - and thus why, or part of the reason why, the judge ruled there had been a TUPE transfer. A couple of weeks later the door agency sent me a p45 with the end date 15th August 2010. The p45, like most of any paperwork I receive, was soon misplaced and then forgotten about.

 

During the final (April 2013) Tribunal, an appeal to decide only whether I was self employed or PAYE, I had but one p60 (from about 4 years earlier) and a handful of recent payslips. Fortunately the judge accepted these meagre offerings, along with my answers, one of which is now relevant. In point 25 of his summation (which I've just read, but wish I'd read it last week), he says:

 

"I accepted the claimant's evidence that once he had signed the contract he had in 2000...he never received a new contract or a P45 at any stage prior to the purchase of the bar in August 2010 by XXX Limited"

 

As it was, I hadn't fibbed. Apart from having long forgotten I had received the misplaced P45, technically speaking I wasn't incorrect: I literally didn't receive a P45 "prior to the purchase of the bar", because its being dated 27th August and landing on my doorstep about 30th August, was two weeks after the bar had been purchased.

 

Now then, here's the rub: I'm not as bright as I look. The relevance of a P45 was lost on me until I started reading the judge's comments today. By this I mean, when I emailed the opposition for a 2nd time the other day, since they were still adamant I was self employed, I decided to attached two P60s that I'd found since the last hearing. Another thing I found (actually only this past week) was this P45. I noticed it had on my PAYE all the way up to 15th August, so thought I'd be 'bright' and send a copy of that along with the P60s. I'd show them for sure I was employed throughout, I reasoned. Doah! Of course, having now read the judge's words, I'm realising a P45 ending 15th Aug is not the best thing to send to your opposition when he didn't take control of the bar until 16th Aug (groan). Have I just totally shot myself in the foot - and I've lost the case and am not to pester any of you ever again - or is it a case of:

 

(a) Like the judge said, you didn't get the P45 (dated 27th Aug) until after the bar was sold, so it's not an issue.

or

(b) The case was always a complex one, and since the agency had no idea you had transferred to the opposition (until after they had sent you a P45) then their sending you a P45 won't matter in this instance.

 

Please can someone put me out of my misery. Need to know one way or another.

 

 

[steampowered]

Did you sue the old owner or the new owner? I'm a bit confused by this TUPE transfer stuff as I thought you said earlier that it is the same owner throughout?

 

The key thing is to find out about this appeal. You really need to get in touch with your lawyer and make sure you know what the hearing is about and that you have got a copy of all the documents. I am still mystified as to why he is bothering to appeal and why the appeal process has taken so long.

 

I don't think there is anything to be worried about with the P45. His letter indicates he is appealing on the basis you were self-employed. Self-employed people do not get P45 ...

 

Even if he is appealing on the basis that you were terminated before the TUPE transfer, and it doesn't sound like he is, I don't think the date on the P45 will be determinative. The date on the P45 is set by the employer; but this is not necessarily correct there is a statutory definition for the effective date of termination of employment.

[Hair Bear]

Apologies if I over-detailed that last 'panicked' post. An original hearing - which turned into two hearings - was set up to determine which owner was accountable for my employment. It turned out to be the new owner, and it is he - or, rather, his company - who I have been suing ever since.

 

I've emailed my lawyer for details of this latest appeal. London EAT have also offered to send me details via email, which I'm waiting on too.

 

Thanks for putting my mind at rest regarding the P45, though I still regret sending it him because I'm more than sure he'll use it to muddy the water.