Help for preparation for employment tribunal

[tommyhd]

My previous employer had held back holiday pay that i am owed. I went to ACAS and went through the procedure with them with no result so they provided my certificate number to take this to Tribunal. As it is only for £900 it seems to be to small an amount for any no win no fee to take on, I have sent my statement to the tribunal and i have a date fir video hearing on the 5th August. I don't know what i need to do next. Do i send them anything and what do i need to prepare for the hearing. Can anyone help. Thank you

[ULA]

I can try to help.

Is the hearing in August what is termed a Preliminary hearing?

Is your employer representing themselves or have they instructed an employer?

What documents if any have been exchanged?

[tommyhd]

Hi thank you for the reply
The email says the final hearing is on 5th August. I received this email on the 7th of June. I do not know what my ex employer is doing and nothing has been exchanged as yet. Do I need to send the court my witness statement or something I think I ha e two weeks to present my case but the only evidence I have is my payslips and emails between myself and the employer what they don't have is any evidence of me ever having holidays

[tommyhd]

I have attached the letter received via email i think this will help explain. For more in-depth explanation- I started working for the company on Sept 22nd 2020 and i completed my notice on Sept 21st 2021.

I was told i would have statutory holidays and the salary and this was agreed via email. In December i was spoken to by the owner who said that over xmas they were putting me on furlough ( the business needed less staff) I was not told i was on holiday or that my holidays would be used in fact i was told i would save holidays by doing this. I was then furloughed again during the second lockdown as my child was not able to attend school and my wife worked in a care home. In all the time i did not request any holidays and nothing was provided to show any approval of holidays. When i handed my notice in i also made sure they were aware of the holidays i was due as i stated this on the notice during my notice period this was not mentioned or disagreed with. All my payslips show either furlough or pay no holiday pay. I know its only £900 and as this is so low not one solicitor i have spoken to will entertain such a small amount but its my holiday time and its a lot of money to me. I am quite surprised how many firms will not do a no win no fee basis for this amount as surely if they look at the case they will prob win it and then claim all expenses from the employer. its very frustrating.

[ULA]

I think you may have your dates of employment incorrect, so clarification on your actual start and end dates would be good.

So statutory holiday entitlement is 28 days, once I know your employment dates i can work out your pro-rata holiday entitement as it appears you might have been employed less than a year.

Where you paid 80% of your salary whilst on furlough or did your employer top it up?
Even if you were put on furlough and your employer wanted you to take holiday they are legally required to give you twice as much notice as the holiday time they want you do take. Plus if you were only getting the 80% of salary for any days taken as holiday whilst on furlought, this should have been topped up to 100%.

The issue that you have is that on a no win no fee, the fee is taken out of what, if anything, you get back from the employer, it is likely that the value of your claim even if you were successful would not pay back what you would owe a solicitor in fees. Plus in the majority of employment claims each party will have to pay for their own costs even if they win.

So from the Tribunal correspondence you have received then you have submitted your ET1 and your ex-employer is now being required to completed their response by way of an ET3, which needs to be submitted back to the Tribunal on the date set out or a judgement will be make without their defence.

You then have a 2 hour video hearing on the date given however in preparation for that you must:

1. By 4 weeks from 7 June send to your ex-employer, or if they appoint a representative then that individual, a document (converted to PDF) of the amount that you are claiming and how you have calculated this.
2. copies of all the documents that you have to support this i.e. payslips, contract of employment as this will detail your holiday entitlement, the document confirming your furlough arrangements etc. again converted to PDF.
3. You also need to start preparing your witness statement (WS) which is due to be exchanged 7 days before the hearing date. A WS needs to be in a pre-defined format and essentially sets out the basis of your claim including any relevant events which should be detailed in chronological order. You have the time to submit the WS having seen the completed ET3 and the evidence from the other side since you may need to refer to these documents to refute/defend what has been said by the respondent.

The respondent or their representative also has some work to do and timescales in which to complete those.

Hope the above information assists.

[tommyhd]

Thank you that is great information. My start day was the 21st and my last day was the 21st so it was exactly a year. My employer did not do paperwork so no contracts no written furlough documents ect. Am. I able to request emails from my emoyee email address that I would have sent to my employer also could i sent a data access request to my employer and the payroll company they used? To confuse matters more I received an email today from ACAS to say this has been sent to them for reconciliation but I have already been down this route I'm a bit confused by this

Thank you

[ULA]

Firstly I am still very confused by your employment dates in your post at #4 you state they were "Sept 22nd 2020 and i completed my notice on Sept 21st 2021." We are still in June 2021.

If the dates should be 22 Sept 2019 to Sept 21 2020 then when did you start the Early Conciliation (EC) process with ACAS?

If not please can you provide the correct dates and when you started the EC process?

[tommyhd]

Oh dear I'm getting a bit mixed up end date was March 23rd 2021 I need to make sure my workings were correct as I worked out I was due 14 days holiday but I'm sure I used the correct dates

[tommyhd]

sorry for the confusion with dates its been a long year. I have attached my EC Cert for you to se

[tommyhd]

Also attached is how i worked out the statuary holidays due.

[ULA]

Great thanks for the information.

So according to the holiday calculation you did you input your start date as 23 Sept 2020 and leaving date at 22 March 2021. If this is correct then you rounded up you are entitled to 14 days holiday pay. Which is correct, as effectively you have worked 6 months which is pro-rata half a year's holiday entitlement.

If you have not taken holiday during your employment, nor had your employer notify you to take holiday, having given you the required notice as I set out in post #5, then 14 days holiday pay is what you are owed. What this is in monetary terms will be your annual salary/52/5 x 14 (13.9).

[tommyhd]

Thank you. Now that this is back with ACAS (i dont know why as that was a waste of time the first time round) should i still send my employer my statement and backup? What can i request from my employer especially as they use an outside company to run payroll. Do i need to get in touch with them to question what the company told them regarding my wages/Holidays?

[ULA]

ACAS can continue to be involved to try and get a settlement whilst the ET claim is progressing.

Yes you still need to provide the information as Ordered by the Judge as detailed in 8.1 and 8.2 by 4 weeks from 7 June. Your employer has 6 weeks to provide you with their information so you will need to see what is provided by them.

You would need to made a Subject Access Request (SAR) on the payroll company to find out what data is held about you. They can take up to 30 days to provide this information as a minimum but do have the right to extend by a further two months but given this is not a complex situation this should not apply.