employee or co-owner?

[sue10]

My ex husband and i have run business together for 16 yrs, we are a limited company, he has 51% of shares and i have 49%,
he is trying to make things really difficult for me, and is claiming gross misconduct that i havent been able to answer phone on two days, his sol says i am his employee, but am I ??
i was under the impression that we were co-owners, he is director and i am company secretary.

 

[Williams lester]

I doubt that you are his employee, but may be an employee of the limited company, do you receive a salary?

You are also a shareholder but that is a separate issue from your employment status.

 

[sue10]

I get a directors salary, he is trying to claim i have been unavailable during office hours, yet i have always worked doing bookwork on a flexible basis, he was on holiday in spain during the times he stated !!! ( and i am going to moan now...he has been away twice in 2 months, i havent had a holiday for 2 yrs )
Here is a section of the letter to my sol

your client is still our client's employee and is accountable to our client as the majority shareholder and Director in relation to her time and duties during working hours. It has come to his attention that (Name Removed)is attending college during working hours and is therefore not available for work. Her failure to be available for work without permission or notice amounts to gross misconduct.

Consequently, please notify your client that she is suspended on full pay while the matter is investigated


.:|

 

[The Resolver]

Forgive me for asking but why are solicitors involved for both sides? Do I take it that this is because you and your ex-husband are still negotiating over some matriomial issues (financial, property etc) . If so, it seems this company/employment issue is being used as a surrogate dispute for other purposes. Its like another child of the marriage and ,like a child, may suffer as an innocent victim of the split. The misconduct jibe is irrelevant. If you as co-owners, both have to communicate ,whatever the reason, through solicitors then clearly , so far as the company is concerned, one needs to buy out the other.

I have assisted through mediation a number of company splits. You are welcome to send me an email ( [email protected]) if you would like to arrange a chat.

 

[Williams lester]

I would advise taking on board Graham's suggestion above. There will be no benefit to anyone (apart from a couple of solicitors) in fighting this out. You need to step back and negotiate a settlement.

 

[ASeelhoff]

Have the divorce and financial arrangments been resolved? If they have not almost anything that you agree or negotiate otherwise is still going to be subject to the final decision of the family courts especially if there are children involved.

Its always best to negotiate and reach a settlement in things like this (unless as Dave points out you are a solicitor on an hourly rate), but if he is being unreasonable its often not possible. I would take your solicitors advice in a situation like this as they will be far more aware of the wider circumstances and all the potential implications.

 

[sue10]

The business will be taken into account during divorce, he is making sure that there is no profit, (-£10,000) and i also feel he has opened up another company and shifting the work over, he has also taken a £500.00 bonus, we saw a family mediator on Monday, and he explained that we will need to contact our accountant to get the business valued, but, he has told the accountant not to let me have any information regarding the business.

 

[mhall]

As a shareholder you have a legal right for information on the business. As a company secretary you don't.
If he is doing what you suggest (3 sides to every story) then it is time to look very closely at the legal implication this has. As Director he has a legal duty to do what is best for the company, and syphoning off work to another company is not a good example of the expected behaviour of a Director

 

[sue10]

I only have my suspicions, it will be very hard to prove it I think, and if the accountant is my hubands side so to speak, how would i go about getting a more realistic/accurate valuation on the business, the wage I/we draw from it, was going to take me/us into retirement.And I also know that it should be doing more than is has been doing lately.

 

[Employment Law Clinic]

your client is still our client’s employee and is accountable to our client as the majority shareholder and Director in relation to her time and duties during working hours. It has come to his attention that (Name Removed)is attending college during working hours and is therefore not available for work. Her failure to be available for work without permission or notice amounts to gross misconduct.

Consequently, please notify your client that she is suspended on full pay while the matter is investigated


.:|

Hi SUe,

You've already got a lot of useful advice on this, so I won't cover that, but what strikes me about this is the comments from you ex's solicitor: you've either been charged with gross misconduct, as the first paragraph suggests, or you're being investigated for misconduct.

If your actions are being investigated, no conclusions have been reached, but a suspension should be for the minimal time necessary to gather the facts & decide if formal disciplinary action should be brought. You would most likely be interviewed as part of this investigation.

If you are being charged with gross misconduct, an approriate investigation should already have been conducted, and you should request details of this in advance of a disciplinary hearing - which should be held without unreasonable delay.

The extracts that you post would appear to suggest some confusion by the author: your actions can't "amount" to gross misconduct if they are still being investigated. Either they should issue a clear charge for misconduct, or notify you of a potential matter that is being investigated. Given this, it is quite a serious flaw, as it implies that an investigation will be a whitewash, conducted simply to reach the desired conclusion.

As well as acting on all the other advice you've received, you should consider getting an employment law specialist to address this.


Karl Limpert

 

[sue10]

Thankyou Karl, and to all who have taken the time to reply, I am wondering who will be doing the interview if it comes to it, my ex is on an anti-harrassment order, and is not even allowd to txt me, everything in relative to the business is handed through our employee???

thanks again..

 

[sue10]

I have just had a sol letter stating that an agm meeting has taken place(without me) and it has been decidid that i am no longer secretary. He is demanding bookwork etc be handed over to him.This means i have no job.

 

[Bill Ryan]

As a major shareholder you should have been notified of the meeting. Were you?

 

[sue10]

no, unfortunately I wasnt.

 

[Bill Ryan]

I am not up to date with Company Law but there is a requirement to notify shareholders and as such the decision(s) may not be valid or at least readily challengeable.

This smacks of an impulsive and careless action. Ironically if you are in fact an employee this act may help you at the end of the day!

 

[sue10]

OK, the accountant has always stated that i/we Draw directors salaries, i manage the paperwork, day to day running of accounts, website, invoices, data processing etc...if he decides that I am no longer secretary to the business, should i still be entitled to manage the paperwork? otherwise I am basically out of a job !!!
would it be more beneficial to me give up secretary position?..I can see him winding the business up just to put me out of a job, and starting a new company in his name only,Is this possible?, and as 49% shareholder, should I either sell my shares now, or would I be entitles to 49% of customer database to start my own company if it ever came to it.

 

[sue10]

Also, as a matter of intrest, given the fact that I have always worked flexible hours, He has said that since he is a majority shareholder, I am accountable to him in relation to my time and duties during working hours......
where do I stand on that???

 

[sue10]

OK..here is an update.
I was still under a suspension but was sick due to stress of divorce and he asked me to do some work for me because he didnt know how to do it.so now I get a letter from my family sol,



'she has not supplied any sick notes'
Recently 'name removed (husband)'attempted to contact 'name removed (me)' in relation to information as to how to undertake sending out the service reminders, a former task of 'name removed (mine)'.
As 'name removed (me)'is not working for the company and has failed to provide any sick notes, we write to inform you that on behalf of 'the company', 'name removed(me)' is now suspended without pay whilst the company investigates as to whether she is fit to return to work.


I offered to do thepaperwork for him even though i was suspended but he replied that he didnt want my help, then decided he did, then told me he sorted it, (he sent our database and stationary to someone outside the company to do the letters)

grrrrrrr

 

[KidsBeeHappy]

Go and talk to an employment lawyer, or ACAS and send him a tribunal notice. Let someone else sit in referee. The only thing with this though is that you have to sue the company (the employer) not ex-husband. So think carefully about the company, and what you want to do with it.

Also, check at companies house to find out if you are recorded as a director, company secretary or both. Directors have obligations to the company, company secretaries far less so.

If you're not a director, then you as a minority shareholder have a right to persue him for mismanagement of the company.

Nothing really constructive here that won't be lots of money for the solicitors. But starting something could be an incentive/impetus to re-align the balance of power, or at least get him to mediation.

 

[sue10]

I was the company secretary, until he decided to remove me, as 49% shareholder i was not even informed, or indeed invited to a meeting to discuss this, (thats if there even was a meeting, which i doubt, since he is the only other shareholder)

I was already suspended on full pay before all this (pending him investigating the need for me to account for my working hours when i have worked flexible for 16yrs, never a problem before the divorce), how can he then make out i am unable to work due to illness???...and in the letter it stated that I no longer work for the company...now Im getting more confused.......

 

[gillyfleur]

Boxby's right. You need to check with Companies House whether or not you are a director as this affects how you deal with the situation. If you're not a director and only company secretary then you are an employee and have employment rights. You have different rights as a shareholder. You need professional advice, both from an (independent)accountant re valuing the business and legal re your employment status/rights and your ex's current (alleged) policy of running the business down/transferring work to another company. Good luck with this one - and whilst it will gall you to do it think about walking away to save your sanity and your money as the ex sounds determined to get you out !! I feel for you

 

[KidsBeeHappy]

Ditto, all of the above. Good Luck.

 

[sue10]

Thankyou for the replies.

I am not a director, even though he has reffered to me as such, as far as companies house is concerned a was company secretary, but, he tells me that he has removed me from being a secretary and appointed someone else. Even as a shareholder, i was not consulted on this....

 

[KidsBeeHappy]

So you trot along to a tribunal, because you cannot sack an employee without following an appropriate consultation process.

But as mentioned, bear in mind that its the company rather than him that you'll be claiming against, so if you want to keep and carry on with the company think it through. Also If he's busy stripping out the company then there may not be any thing left there for you if your claim was sucessful.

But there is sufficient legistlation there to make sure that you have some recourse as both an employee (and minority shareholder) if you want to pursue it. From an employment law perspective, I would say that based on what you've said it sounds quite a strong case. Make sure you keep all emails/letters/answerphone messages etc.

 

[sue10]

Thankyou....