Self Representing in Employment Tribunal - Help!

[Eyes540]

I am looking for information to help my friend who is currently going through an Employment Tribunal.

She is taking her previous employer to court for constructive dismissal and discrimination after finding a pay slip for another employee (who had exactly the same job as her) stating that he was paid more. The company sold to another which took over, she became one of their employees and they changed her terms of her employment - she was previously paid 40 hours where the buyer of the company told her that she would be paid the exact hours she worked and if she failed to work those hours she would be required to compensate for that the next day. They are also claiming that, as the new owners of the company, they are not responsible for any cases brought against the company as it was before they purchased it.

The company are also claiming that the employee who was being paid more than her was employed in a different position, working with more high profile clients. Neither of them were ever issued with a contract of employment, from the previous owners of the company or the new.

Their solicitor has emailed her with an email stating 'without prejudice' that she is going to loose the case and will be liable for all of the costs, and they have made a verbal out of court offer of £1000 for her to pay their costs and drop the case.

The things I would like to know are:
1. Can a company that has ceased trading continue to pay wages? If not, how can her final pay slip read that she is paid by one company which has been bought by another?
2. Should she have received some form of agreement under TUPE Employment Laws when the company she was working for sold to another company?
3. Considering that she has no legal representation in her ET and has been representing herself, is their solicitor permitted to contact her prior to her preliminary hearing date?
4. Her trial is in less than a week and she has not received a bundle, is there anything she can do about this?

I would be grateful for any advice.

 

[ethical PR]

I'm not an employment lawyer but someone but here are my thoughts as someone who has run their own business...../

Suggest she might want to contact ACAS which has a free helpline dealing with employment issues.

1. Seems strange

2. She could check this with ACAS regarding new TUPE regulations http://www.acas.org.uk/index.aspx?articleid=1655

3. As she doesn't have legal representation then who else would you expect their solicitor to approach other than herself regarding a possible settlement offer?

4. She can contact the Tribunal and find out what has happened to the paperwork.

If she is struggling with preparation for the tribunal it might be worth her getting some initial advice from an employment lawyer ....there are a few on here or she may prefer someone who is local. Most will offer a fixed fee for an initial meeting.

 

[Newchodge]

The other side's solicitor should contact her via ACAS. If they have contacted her direct then there is something wrong.

She is most unlikely to be liable for any costs provided she is taking action against an organisation that she was employed by, unless she is acting frivolously vexatiously or abusively.

If she transferred to the new company under TUPE they are generally liable for any tribunal cases that would have been taken against the old company if the transfer had not happened.

There should have been a tribunal order stating dates by which bundles should be exchanged. If there is, and the other side is in breach, she should immediately contact the tribunal office and complain about their failure, and mention a striking out order.

 

[sjbeale]

Both parties are expected to work together to exchange documents and create a joint bundle of documents to bring to the tribunal on which they will rely. The solicitor for the respondent should know this even if your friend did not unless they are very inexperienced in employment tribunal procedure.

However as stated above the tribunal would have set out key dates in writing when certain tasks needed to have been completed by and sufficient notice would have been provided. If your friend was unsure about what she needed to do when she received the letter, she should have phoned the tribunal office. She must surely have paperwork that can back up her claim that she should have shared with the other party and vice versa. She should also have worked out how much her claim is worth and created a schedule of loss.

The letter sent to your friend is typical settlement tactics with the respondent solicitor starting off with a low offer. Sometimes they will go through ACAS and sometimes they will contact the claimant direct (or their representative).

It is difficult to know what to do at this late stage in the game. Tribunal hearings are very rarely postponed even if due procedure has not been followed. However the tribunal panel will not too happy if everyone gets into court and no one is prepared. If there is no bundle then cross examination can not take place and certainly no preparation for cross examination.

Perhaps your friend might like to go back to the solicitor by phone with a much higher counter offer and see if ultimately some middle ground can be reached. I have settled many claimant cases and the most popular figure is around £4,500-£5,000 but there is no guarantee of that. It depends on how generous the other party wants to be and how difficult they want to make things.

 

[Newchodge]

Can I just check, when you say £1,000 for her to pay their costs, are they saying pay us £1,000 AND drop the case, or else?

I would not recommend going back to the other side's solicitor. Get on to the ACAS rep who is acting in the case, and discuss the situation with them. they will not advise on the law or the merits of the case, but they can help in many ways.

 

[Eyes540]

Can I just check, when you say £1,000 for her to pay their costs, are they saying pay us £1,000 AND drop the case, or else?

.

Thank you so much for your replies. It is very difficult to make sense of the legalities.

The respondents solicitor has offered my friend £1000 to settle out of court, this is the sum she has told my friend will cover her costs thus meaning that the £1000 will be paid to the respondents solicitor and my friend can walk away without loosing the case and having to pay any charges incurred by the respondent.

My friend brought the case having left the company after the new owners took over and her workload increased massively meaning a threat to her and her passengers safety. Its is very hard to explain without specifics but she was originally employed as an executive chauffeur by the previous owners and her duties were to collect business people from all over the UK for blue chip clients. The new owners of the business were allocating journeys each day that meant she was driving for anything up to 16 hours a day, with passengers for no additional pay or without sufficient rest periods.

Having previously discovered a male member of staff who was employed by the original owner to do the same was paid over £1.00 per hour more and having raised a grievance with the previous owner only months prior to the business being sold is the claim for discrimination with pay.

My friend has provided everything the court have requested within the time frame, supporting worksheets, payslips etc prior to a conference call with the tribunal judge and the respondents solicitors some weeks ago and previous to that. She also received an order from the court setting out what she needed to provide and what happened next and the judge was very understanding of her claims and situation and where possible advised her.

The previous owners sold the business to the new owners in November 2012 but at no point did either the new or old employer issue any paperwork to the existing staff to say the business was being sold and they would be employed by someone new. The new owners walked into the company premise one day in November and simply announced they were 'taking over as the new owners'.

My friend worked for the previous company for over 6 years but was never issued with a contract of employment but had been paid for 40 hours a week, 5 days over 7 as the business required.

She has never been issued with a contract or any paperwork by the new owners who are now stating that the previous owner issued paperwork to all the existing staff. I was her manager at the time of the take over and decided to leave the business as soon as I knew they had sold but no employee received anything.

My friends court date is this Thursday 27.03.14, she has had all supporting paperwork for her case from the court and followed the instruction, as well as we can understand, to the letter.

The respondents solicitors has made several calls to my friend, some where she states the call and conversation is 'without prejudice' but my friend has only today received the 'bundle' of evidence. None of the documents she has requested from the respondent are in the bundle?

The new owners are now claiming my friend left the employ of the previous owners and therefore there was a break in service and they are basing their case on this. During the dates that they are claiming she left the business she was diagnosed with stress and put on sick.

Their solicitor has today emailed my friend to offer £2000.00 and have told her she will loose the case and have to pay high costs as she is out of time with her discrimination claim and left the company and therefore cannot claim constructive dismissal against them.

It is all a very big mess and my friend, I think had no idea of what she was taking on when she began this process.

We have read the TUPE information available and feel that my friend, who has a final payslip stating a YTD pay and tax that show she has been continuously employed, worksheets that show a blatant disregard for her or passenger safety allocated by her management team, having been told she would be paid for the hours she worked and if there was a deficit it would be made up and having been continuously paid until she left the business in March 2013 by a company that had been supposedly sold in November 2012 and ceased trading, which the new owners claim, in December 2012 has a good case for a fair and just settlement.

I am sorry for the essay but if it can help my friend, who can't afford representation having financial commitments and very limited knowledge and support I would just be really grateful if there is any advice available to her.

Thanks again.

 

[sjbeale]

If your friend has the paperwork to back up her version of events then that is half the battle. It is a shame that she has only just received the bundle with documents not enclosed that she requested. Does she have the request for additional paperwork in writing? If so if she goes into court tomorrow with that proof she can show the respondent's solicitor was vexatious in not including it. Unfortunately the solicitors often play games like this.

It sounds like the offer is increasing all the time and she may have a good case but without seeing the paperwork I can not comment. She still has time to negotiate a higher offer directly and this can happen even on the day of the hearing. I once settled a case on the morning of a hearing before it began. I would recommend she deals direct with the solicitor now and if settlement is reached contact ACAS then about a COT3. I have been very disappointed with ACAS's involvement in negotiations recently and sadly often find they do not help even though that is their job to do so. Often you never hear from the ACAS rep despite the fact they are meant to contact both parties early on in the process.

Your friend really needs to establish the key points she wants to make during the hearing referring to the documents that back up her version of events ie equal pay/discrimination, failure to follow TUPE etc. where possible. It is difficult at this late stage to provide a crash course in cross examination which I could have done.

 

[bovine]

The op is saying the money is to be paid to the respondents solicitor to cover HER costs - so basically the solicitor is trying to scare the friend and make them cough up 2k so they dont get hit with higher costs.
But what they havent told your friend it is unlikely your friend will become liable for their costs. A quote below from the CAB "Your employer's representative may say they will apply for you to pay costs but, usually, they are just trying to scare you into dropping the case or accepting a low offer of settlement."

Sound familiar?

 

[sjbeale]

It would be good if you could let us know what the outcome was.