Employment Claim

[libby23]

Hello,

I am in the process of writing my ET claim form. I am unsure of exactly what to claim for, i.e. unfair dismissal, breach of contract, wrongful dismissal etc. The outline of the facts are:

Private company owned equally by four people. I own 25% and the other 75% is owned by a mum, dad, and son.
Mum and dad reside abroad and do not work in the company so are non executive directors
Me and the son were employees and executive directors.
I was dismissed by the company (mum, dad, and son) for 'other substantial reason' - the reason - 'the way you raised concerns'.

The concerns I raised were:

In 2018 I raised internal concerns to the mum and dad relating to bullying & misappropriation of company funds by the son ( proven - mum and dad told him to pay back funds - dad is now saying he gave him permission to take the money)
In 2019 six employees raised a collective grievance relating to non payment of pensions by the company ( the son is the person in charge of payment of pensions) . I gave this information to the mum and dad to look into, the son gave a technical reason to the staff for non payment.
In 2020 an employee raised concerns re bullying, then resigned. In 2020 I raised this concern and further concerns relating to missing company money to the mum and dad.
Son then disappeared for two weeks ( later a picture emerged to show he was in France with parents). I was then invited to a 'dismissal meeting'.

No investigations were initially carried out.
I complained about this and then they did investigate the bullying just before the appeal meeting. The employee confirmed she felt she was bullied. The dad said he didn't believe her.
I was refused any witness statements from current staff
I was refused an alternative person to chair the meeting and/or the appeal. (Dad did them all)
In fact, I was refused anything I requested.
I had emails from the dad to the son and vice versa telling each other what to say - these were submitted at appeal but were ignored. My Union rep said it was all disgusting.
I had an appeal hearing. Then I was dismissed.
I still own 25% share of the company

Five days later they dismissed my daughter. Reason given - cost saving ( she was an apprentice on the lowest wage) Only employed for 18 months though.

My final salary/benefits and my daughters final salary have not been paid.
My pension hasn't been paid for 18 months.

I paid myself and my daughter some of what we were owed from the companies directors loan account. I received a county court claim suing me for all the money ( I am receiving advice on this forum for that)

So, I think I can claim for unfair dismissal due to whistleblowing but I'm not sure what else or how to go about it.
I am hoping my daughter can claim even though qualifying time of two years is not satisfied.
We have both been through ACAS and have our certificates.

I hope this all makes some sense as it just feels a mess.

Thank you
Libby

[des8]

Ula other thread here: Court claim - so worried and upset - LegalBeagles Forum

[ULA]

What type of contractual arrangement did you have as a shareholder/director were you on Service Agreement, Contract for Services or some other contract? Under those terms what were the contents of any termination clause and disciplinary/grievance clauses?

Answers to the above would be useful to give you a more considered response. However, in the meantime hoping the following will help:

Unfair dismissal - is the right not to be dismissed unfairly and is a statutory right. The determination of whether a dismissal is fair or unfair is dependent on the employer's reason for dismissal (and whether or not it was one of the potentially fair reasons listed in s.98 of the Employment Rights Act 1996); whether or not the employer acted reasonably in treating this reason as sufficient to justify dismissing the employee; and whether or not a fair procedure was followed. In tbis case is would seem that the latter point did not happen.

Wrongful dismissal - is a dismissal in breach of the contract and the only relevant considerations for a tribunal hearing in such a claim will be the contractual obligations of the employer. An example would be where an employer dismisses an employee without notice or with insufficient notice under their contract of employment. Damages awarded usually equate to the value of the employee's pay and benefits during the period of notice that the employee would have been given, had the contract been terminated lawfully.

If you think you were dismissed for whistleblowing then you must have held a reasonable belief that disclosing the information would be "in the public interest" and that the information you were disclosing concerned:

* A criminal offence.
* Breach of a legal obligation.
* A miscarriage of justice.
* Danger to the health or safety of an individual.
* Damage to the environment.
* Deliberate concealment of any of the above types of wrongdoing.

In regard to your daughter she cannot bring an unfair dismissal claim as unless it can be proven it was for a protected characteristic or covered by a few other criteria for automatice unfair dismissal, she does not have 2 years of service. Her claim would be for unlawful deduction of wages if she has not been paid her final salary and then wrongful dismissal to claim any unpaid notice in accordance with her contract and accrued but untaken holiday up to her termination date.

Hopefully that has given you some initial help on your ACAS claim.

I have looked at the linked des8 8 had provided which is useful background information and i see you are getting help on that from our other forum experts.

[libby23]

Hello ULA,

Thanks for replying.

I had a standard employment contract for my employee role. I became a Director after I became an employee. My employment contract wasn't updated to reflect I was a director. Companies House was informed, and shares issued to me. I have attached the clauses from my contract. clauses.docx

Thank you for the information re different types of potential claims.

It appears then that unfair dismissal and Whistle blowing is the correct way to go forward. I believe that whistleblowing Non-payment of pensions and misappropriation of funds is covered under ‘breach of a legal obligation’ and deliberate concealment.

Re my daughter, I thought she might be able to claim as she was clearly dismissed because she was my daughter and I had raised concerns under whistleblowing, bullying etc? She was also the youngest member of staff and older employees who started a year after her were not dismissed. In fact, one was given a rise (this contradicts their reason for dismissing her which was ‘cost saving’.

I understand re unlawful deductions.

Yes you have helped, thank you.

Re my other posts – Yes des8 has really helped me too. I am very grateful.

Libby

[ULA]

Thank you for uploading the clauses which as you say are standard employee type clauses.

In regard to your daugher I cannot see a case for discrimination on the grounds of whistleblowing since she did not carry out the act of whistleblowing and indirect descriminationhappens when there is a policy that applies in the same way for everybody but disadvantages a group of people who share a protected characteristic. However please remember I am not an employment lawyer.

When you are dealing with the claim for your daughter and the unlawful deduction do not forget she is also contractual obliged to notice and payment for accrued but untaken holiiday up until the date of her termination if these have not been paid to her.

[libby23]

Hi ULA,

Thanks so much for your advice re my daughter. No she hasn't been paid all monies due to her so she will claim for that.

I have started my ET form now and just putting together all the dates and information.

Kind regards,

Libby

[ULA]

You know where we are if you need any more help as this progresses

Just come back to this thread for the employment part of your issue as it makes it easier to provide advice if we are just running with one thread on something like an ET claim.

[libby23]

You know where we are if you need any more help as this progresses

Just come back to this thread for the employment part of your issue as it makes it easier to provide advice if we are just running with one thread on something like an ET claim.

Hi ULA,

That's lovely, thank you. I cannot believe you all give this advice for free, it is amazing. I would like to contribute if I can in some way.

I have no doubts I will look to you for advice again sometime soon.

Many thanks
Libby

[libby23]

Hello Ula,

I would like some advice please on my ET claim if possible.

My claim has been submitted against the Company and against a named Respondent. I have received two letters from the Tribunal. One states - 'Response accepted' ( this is the company response), and the other letter states, 'No Response Received - under rule 21 of the above Rules, because you have not entered a response, a judgement may now be issued. You are entitled to receive notice of any hearing but you may only participate in any hearing to the extent permitted by the Employment Judge who hears the case.

The person who has not responded is the same person who has completed the companies ET3 and is intending to represent the company at tribunal.

My question is, how can this person represent the company at tribunal if said person has been instructed that they cannot participate in any hearing? Surely this is a conflict as this person has a vested interest in the outcome. I am not sure what I should do next.

Also, I have been sent an 'Agenda for Case Management at Preliminary Hearing' and an hearing date for May for which this person intends to represent the company. Again, is this not a conflict?

Hope I have explained it okay.

Kind regards,
Libby

[ULA]

What was your reason for submitting your claim against the company as well as a named individual?

[libby23]

Hi Ula,

My claim is regarding whistleblowing and unfair dismissal.

I submitted my claim against the named individual as they colluded with the company to ensure I was dismissed. I have evidence that the named individual had no intention of allowing me a fair hearing and or appeal ( I have emails). I have evidence that the named individual covered up serious concerns.

Libby

[ULA]

I guess you were using the case of Timis v Osipov as the basis for naming an individual as second respondent alongside the company.

I have to say this is not something I have come across before however you need to read the wording carefully and the important part is ...."you may only participate in any hearing to the extent permitted by the Employment Judge who hears the case." Therefore it will be down to the judge to decide whether the individual will be allowed to defend the claim against the company in their capacity as director/employee of the business, even though as second respondent they will have a judgement made against them based on a non response.

I have no idea what the Judge will say - sorry

[libby23]

Hi Ula,

Thank for your answer.

Do I raise this to the judge before the Preliminary hearing or will he already know? Sorry if this sounds like a dumb question.

Another question - I am completing the Agenda and I am not really sure how to complete box 4.1 'What are the issues or questions for the Tribunal to decide' AND box 4.2 'Are there any preliminary issues which should be decided before the final hearing'.

Never done this before so I'm out of my depth.


Kind regards,

Libby

[ULA]

In the ET3 response from the company did this individual put their name as the representative at Section 8 and if so I presume this was the same name that you detailed as the second respondent on your ET1?

Do not assume the judge who makes any judgement about the non completion of the ET3 by the second respondent will be the one at the PHR.

4.1 You need to state what your legal claim is (from what you have said your claim is unfair dismissal on the ground of whistleblowing) but you need to put the exact nature of your claim. You need the tribunal to decide whether your dismissal was unfair.
4.2 This may be an opportunity to clarify whether the second respondent is allowed to be the respresentative of the company given the correspondence from the Tribunal.

On a feedback note you need to understand you have embarked on a legal process which may well result in you having to represent yourself at the Tribunal which means that you do need to understand the Tribunal process and on the latter this may be a useful start:

https://assets.publishing.service.go...dure-rules.pdf

[libby23]

Hi Ula,

Regards section 8, No. It has been left blank. The named individual has put their name in section 2 as the contact for the company. I know that this person will represent the company though. Yes it is the same person as the second respondent.
Thanks for advice re judge.
Regarding point 4.1 I understand now ( I think)
Regarding point 4.2, I will write what you have said and see what happens. I believe that the Respondent can also apply to the judge to submit their response late so I presume they might do that before the hearing.

I am doing lots of research and I have bought some books to hopefully help me on my way. I have non stop read info on employment law but it does get somewhat confusing. Thanks for the link. Off to read it now!

Thanks again for all your help. It is appreciated.

Kind regards,
Libby