TUPE during ET ... is all lost ??

[rusty100]

I have been helping a friend during a tribunal of which they successfully secured a favourable judgement. Enforcement was issued after following the process given by ET.

During the tribunal it has since been found that the employer has moved address of both the trading and registered office in the hope of evading the payment to the defendant.

The enforcement officers have been to the new address and was told that the previous owner is no longer involved and is going through IVA.

I have all correspondence to hand ...

Would the new company be liable ? Can they be attached to the proceedings ? as it is the same business, same name and same employees, only the address has changed, and possibly director/ owner.

Your thoughts and comments would be greatly appreciated.

Regards


Rusty

 

[David A]

There seems to be some confusion here, as my understanding is that IVA's are concerned with individuals, not companies.

If the favourable judgement of the ET was anything significant and it was against Old Company Ltd, it may be the case that Old Company Ltd does not have the funds to pay the judgement and thus has ceased trading due to being insolvent. New Company Ltd has now been created and under TUPE taken on the employees of Old Company Ltd.

As far as I am aware, the ET judgement can't be enforced against New Company Ltd, so the win at the ET might end up being a hollow victory.

 

[rusty100]

The IVA I believe is a throwing off tactic ... the Tribunal stated it should be in the company name along with the individual that was disputing the claim.

 

[rusty100]

to add company has still been in correspondence with the Tribunal appealling the judgment which was refused.

 

[bwglaw]

The IVA I believe is a throwing off tactic ... the Tribunal stated it should be in the company name along with the individual that was disputing the claim.

Who the judgment is named against will be key here as well as the type of claim succeeded.

 

[rusty100]

Sorry, about previous post not being clear.

The unfair dissmisssal took place 7.2.11

The company was a limited company which dissolved 29.03.11

New Ltd company 8.9.11

Letter to tribunal sent 18.10.11 saying ceased trading 30th Sept 2011

Tribunal hearing 18.10.11

Tribunal Judgement 20.10.11

Decision for judgement review 15.2.12

Judgement made in individuals name and trading as, due to the company change and the individual disputing claim to this date at the same address.

Both new factory and registered address recently found and details given to enforcement officers.

Hope that is clearer.

Thanks for the previous responses.

 

[bwglaw]

Tribunal Judgement 20.10.11

Judgement made in individuals name and trading as, due to the company change and the individual disputing claim to this date at the same address.

It appears that an ET judgment was handed down post liquidation of the respondent company and the ET has entered judgment against the individuals. You may be able commence enforcement proceedings against the individuals, however, specific advice needs to be sought on this issue.

 

[Alan R Price]

If the business has been transferred to yet another owner, the employees' rights may well have transferred across under TUPE so that the current owner of the business is liable. It is worth taking formal legal advice on this point.

 

[Chris Ashdown]

How is the judgement made in individuals name when the original company was a limited company that closed down and the tribunasl was 6 months after it had closed down

Are you saying limited is not limited?

 

[bwglaw]

How is the judgement made in individuals name when the original company was a limited company that closed down and the tribunasl was 6 months after it had closed down

The ET judge must have had a reason based on evidence for making the judgment against the individuals. With no facts, I do not know the reasoning.

Are you saying limited is not limited?

Many company directors are not aware of personal liabilities that can arise during the course of being a company director. Directors cannot hide behind a limited company in every situation, including claims in tort i.e. discrimination.

 

[rusty100]

thank you all for ur responses ... it is clear that this needs a closer look

 

[Chris Ashdown]

Rusty can you explain why they made it a individual as responsible rather than the limited company

 

[rusty100]

When the ET 1 was submitted it was a limited company, ...the limited company was disssolved before the hearing ... the respondent sent a response into the tribunal, also stating this. It was then adjusted accordingly. Then the new company was set up. (Thinking out loud, he would have sold the business so would have be been paid handsomely for a going concern.) which begs a few questions ....

 

[Chris Ashdown]

OK I am dumb.

Please can someone explain how a person employed by a limited company has reason to claim with a employment tribunal against a individual of the company rather than the company itself

The following month the company ceases trading and was disolved

6 months later a new limited company is formed

yet the employment tribunal is going after a individual of the defunct limited company for payment of the fine / award

Why was a individual chosen for the payment when it was a limited company that they worked for which no longer exsists

If it was discrimination say by a director then you would expect the company to be responsible, and the discriminator and possily a director liable for action by the police not the employment tribunal

 

[David A]

OK I am dumb.

Please can someone explain how a person employed by a limited company has reason to claim with a employment tribunal against a individual of the company rather than the company itself

Employment law is very complex, so you are not dumb at all. By complex, I mean that there are many pitfalls for employers that are not at all obvious, The result is that it is always highly dangerous to employ anyone - especially so as a sole trader or standard partnership, where all of your life-long assets are at risk. There is no justifiable reason, in my opinion, why any sole trader/partnership should ever employ anyone - the risks are far too great.

It is difficult to comment on this ET judgement as this thread has only had drip fed information. However what I suspect is:

Old Company discriminated against an employee, but folded before the case was heard. The claimant (employee) then got the ET to amend the respondent (employer) to that of the directors at the time - and it is they who judgement was awarded against. With regard to this case New Company is irrelevant.

My understanding is that if Old Company had not folded before judgement was awarded against it, then it would have been straightforward. No doubt Old Company would then have looked at its assets and the judgement liability and decided that this had made the company insolvent and ceased to trade. As judgement would have been against Old Company, the directors would not have been liable.

That's my view anyway.

 

[bwglaw]

If it was discrimination say by a director then you would expect the company to be responsible, and the discriminator and possily a director liable for action by the police not the employment tribunal

I think you may be confusing several issues here. Racial hatred is dealt with by the Police as a criminal offence. However, there are provisions under employment law where any individual can be liable under civil law for their actions in the workplace.

In discrimination cases it is common for the perpetrator to be named as a respondent and this person could be a Director or an employee. The company would also be named as a respondent in many cases. If the company goes into liqudation then there remains a claim against the individual.

The fundamental difference here is that discrimination comes under the law of torts, whereas other employment law issues come under the law of contract.

I cannot possibly comment on the transfer of liability in this case because if the individual was not named as secondary respondent then an application to the ET is required and like I said earlier, the ET have made the judgment on evidence that the liability should be transferred or remains if named.