Employment tribunal issue **SETTLED**

[georgia099]

Can anyone advise? I have submitted an ET1 claim for unfair dismissal after being dismissed by new employers for gross misconduct by the new employers after the store where I worked was sold.

It was taken over in Nov 2015 but now it appears the sale has not completed due to the new employers disputing the stock price.. What will this mean to me with regards to my claim??

[Guest topcat14]

Presumably the new (now old) employers still exist as a business.

 

Have you had the early conciliation certificate yet ?

[georgia099]

Presumably the new (now old) employers still exist as a business.

 

Have you had the early conciliation certificate yet ?

Yes I've got that and submitted the full ET1.. The case is being dealt with by the union but I'm worried it might be a issue that the sale hasnt properly completed..

[steampowered]

I don't understand how it could be that the buyer could have dismissed you if the sale didn't complete? If the sale didn't complete surely the previous owners would have remained in control of the company?

[georgia099]

I don't understand how it could be that the buyer could have dismissed you if the sale didn't complete? If the sale didn't complete surely the previous owners would have remained in control of the company?

This is what concerns me.. It definitely hasn't completed although the new owners paid the old owner for the actual shop they stopped the cheque for the stock as they suddenly decided they didn't agree with the SAV cost.. So the money they paid for the shop itself is still sat with the solicitor and the old owner is yet to receive a penny.

[georgia099]

Other than that my case is rock solid according to the union.. But it is a very strange set of circumstances unfortunately and I've only just learned of this issue with the sale.. I know employment law is very complicated and maybe it could be ruled that if they don't actually own the business fully that they may not be held responsible .. I really don't know what to think.

[ericsbrother]

They own the interest (shop, business, goodwill etc) even if they dont own the stock, which is what their argument with the seller is about.

[georgia099]

Thanks for that Ericsbrother.. So does that mean it shouldn't have any bearing on my case?? I submitted the ET1 on 14 March so I am expecting their response anytime soon so hopefully won't be an issue then

[steampowered]

If the new owner is operating the business, then I think he will be the employer. The key test for an employment contract to transfer is whether the business has been transferred as a 'going concern'.

 

It doesn't really matter whether or not the former owner has been paid. The key point is who is operating the business. The former owner might want to sue the new owner for that payment but that is not your problem.

 

Can I ask who you named as the employer on your ET1 form? Was it the old employer or the new one, and was it an individual or a company? If it was a company, has the company stayed the same or has the business moved to a different company?

[georgia099]

It's the new employer that's named on the ET1 and it is an individual that's named.. The business has moved to a different company.. It's a franchise of a well known convenience store.

[steampowered]

It sounds like the business is being operated by the new employer, so you were probably correct to name the new employer on your ET1 (assuming he is employing you as an individual sole trader rather than through a company ... if this is the case, you would need to name his company).

[georgia099]

Yes he is a sole trader.. Ive already received an offer through the early conciliation process which I refused on advice from the union..I was just worried that this recent discovery about the sale of the shop might have been an issue but hopefully it won't affect anything although we've yet to receive the ET3 .. What would happen if he doesn't file a response??

[Guest topcat14]

Yes he is a sole trader.. Ive already received an offer through the early conciliation process which I refused on advice from the union..I was just worried that this recent discovery about the sale of the shop might have been an issue but hopefully it won't affect anything although we've yet to receive the ET3 .. What would happen if he doesn't file a response??

 

Quite simply ..the employer runs the risk of a default judgment and therefore losing the case. Have you submitted a schedule of loss ?

[ericsbrother]

As soon as the deadline has passed get on to the tribunal office and seek a default judgement. That may well be appealed but it will then need a bit of explaining as to why nothing has happened by the business owner.

[georgia099]

Hi.. Heard from union today we've got a tribunal date in July but as yet there is no response from employer so will ask them about the default judgement when I next speak to them. There is a schedule of loss prepared but I don't think it's been submitted yet. The union rep doesn't think it will proceed to tribunal though.. She thinks they will offer to settle before then but will have to wait and see.

[donarebun]

Hi,

 

you could look at time limit and see if you can add the old employer but I really think it is not necessary based on what Ericsbrother said.

 

If you are really worried just add it.

[georgia099]

Hi.. Just a little update.. Shop sale not an issue at all.. I've received the ET3.. The union legal dept been having a giggle with it apparently.. I was allegedly given a verbal warning a few weeks before I was dismissed.. Absolutely untrue and I believe even verbal warnings should be in writing so shall be asking for this to be disclosed for the tribunal. Also that they didn't bother with the disciplinary procedure, appeals etc because I would still have been dismissed.. ??

[ericsbrother]

verbal warnings are formal and noted. Common in larger companies for employee to be given a copy as the warning is usually read to them from a sheet of paper prepared by manager and HR to make sure it is correct. Files will have been passed on from old employer to new employer so there should be a trail for it. If a copy miraculously appears it would be worth comparing the printing and paper with any other document that supposedly came from the same source. The metadata of the computer or printer will give away an attempt to backdate something concocted later Epsom printers put a dot code on every document printed but if the letter came form a different printer then the ink jet spray patterns will be different when magnified. Likewise a different brand of paper may well have a different kaolin content and thus different UV signature or transparency, drying marks etc. things worth looking into if jiggerypokery is suspected.

I once went to a tribunal where somone had given a false witness statement. When I presented forensic evidence that their written statement couldnt possibly be true they wisely declined to repeat their submission to the panel.

Just the thought that something will be scrutinised is normally enough to stop them making a false statement in a formal situation.

[georgia099]

A little update... Been made an offer today which is a fifth of the value of my claim. I've obviously refused this but unsure what a reasonable offer would actually be. The union have said my case is rock solid and I am more than prepared for the tribunal and that doesn't bother me one bit. Obviously if I can secure an offer that's not too far away I would consider it.. But not too sure what would constitute a fair offer??

[becky2585]

Nobody can answer that question without knowing the details of the claim and defence.

[georgia099]

Basically I was given a written warning after the store was taken over after I submitted a grievance.

It was for something I didn't do which I could easily have proved if the owner had bothered to ask me about it or indeed given me an opportunity to refute it.They also included with it a 0 hour contract when I was working 37 hours a week. I refused to sign it and then 2 days later they put a letter through my door saying I was dismissed for gross misconduct for being rude to the owner.. I.e refusing to sign the contract.

No investigation.. No grievance hearing.. No avenue of appeal given.

[steampowered]

What are you actually claiming for - unfair dismissal? lack of notice pay?

[georgia099]

Yes.. Unfair and wrongful dismissal and notice pay .. Was paid wages owed but that was all.

I did find find another job but less pay so Union have claimed for future losses as well.

Comes to about 5k.

[steampowered]

OK. Presumably you have 2 years employment with that employer?

[georgia099]

Yes.. Was employed for 2 and half years by previous owner.Obviously TUPE ensures continuity of service.