Are we on the right track?

[dori2o]

My wife was made redundant on the 31st Jan, we are claiming unfair dismissal, I would like some advice on whether we are doing the right thing?

My wife started working for a discount booze shop in June 2007 working 20-25 hrs per week.

In November 2008, out of the blue, the owner of the shop announced that he had sold the store to someone else, the new guy came in and kept the old staff, no change in contract, no change in hours and no mention of possible redundancies.

Just after Christmas (End December) my wife was ill and had a week off work, when she returned she found that the employer had taken on a new staff menmber and his 'friend' visiting from India, had also been doing the odd shifts. At this time my wifes hours were reduced to 16.

On 30th Jan 2009 my went into work as normal, just before the end of her shift, the employer handed her a letter that was dated the 29th Jan, and stated that from 31 Jan she was redundant.

Throughout the time the new guy has owned the shop there has been no mention of redundancy, no consultation, no meetings.

My wife left, but had to go back for her salary,it took a few days of arguing to convince the owner my wife was entitled to a weeks notice pay, which she has received, however on her payslip it is noted as redundancy pay.

We have spoken to ACAS and in their opinion there is a good case for unfair dismissal.

We have sent the employer 2 letters so far,
1) A request for a statement of reasons
2) an appeal against the redundancy as he has not followed employment law rules.

These letters were received by him on the 3rd February by recorded delivery but as yet there is no answer, we have given him 28 days to respond.

Can anyone suggest anything else we should be doing?

[Guest]

Re: Are we on the right track?

At the expiry of your deadline, file a claim using the ET1 Claim Form which can be found here - Employment Tribunals Online: Claim Form (ET1)

The new owner has failed to follow the correct procedures and your wife has a valid claim against him for either wrongful dismissal or unfair dismissal. The fact that the business owner is claiming that this is a redundancy is irrelevant. Your wife has been dismissed, but the reason for the dismissal was redundancy. This does not absolve the business owner of the obligation to follow the correct statutory procedure.

However, since she has received a week's pay in lieu of notice, what are you hoping to get out of this, as it is not against the law to dismiss an employee? Any claim for damages for wrongful dismissal would not usually amount to much more than the money that you would receive had the dismissal been conducted properly, i.e. one week's pay in lieu of notice.

[dori2o]

Re: Are we on the right track?

We're not after money, my wife had made very good friends with the people she worked with, and if it teaches the employer a lesson in how to deal with his staff properly, all will be done.

Plus he will suffer from the costs he will have to pay.

It costs us nothing to attend the hearing.

Now, I have another question.

I am completing the ET1 form in preparation for the claim, it has come to the section where I put in the name of the employer.

Now on the letter advising my wife of her redundancy, it is addressed from Joe Bloggs Taverns, but on her payslip it says the company is Starworld Ventures Ltd, so my question is, who do we put on the ET1? the shop is based in the northwest whilst Starworld is registered in London

[Tools]

Re: Are we on the right track?

Personally I would address it to her place of work, they can then forward it to the relevant department.

[dori2o]

Re: Are we on the right track?

ET1 form submitted on 5 March 2009

Confirmed received and accepted by ET 9 March 2009.

Today we received a telephone call from the employer, my wife passed me the call as she is unable to deal with this at the moment as is too upset to do so.

Heres a transcript of the call.

Thursday 12 March 2009 Call taken at 12:53 by Stuart Daughtry
Mr Ashad called in reference to the ET forms he had just received. He asked if Ann could confirm when she started working for the company and what holidays she had taken, he also wanted a copy of the employment contract as he did not have one.
I explained that we would not deal with any thing via the telephone and requested that he put his enquiries in writing. He explained that he cannot reply to the forms without this information and that the ET had told him to contact us to get this information.
I again explained that my wife would not deal with any telephone calls and that all correspondence should be in writing so that a full record can be kept.
He then said, that he had on tape, details of what happened when we went into the shop the day after she was made redundant, which happened to be payday. (All my wife wanted was her final salary whiuch had not been paid into the bank. After much arguing I lost my rag and said if he did not pay her I would take the money from the till myself, the manager called me a F’ing B*****d and threatened to call the police, at which point I left the shop. The caller today said that the police had a copy of this and he may press for charges to be brought in light of this matter now being nrought to ET.
I asked the caller to confirm that If my wife did not stop the claim, he would ask the police to prosecute me, he confirmed this. I then said I would contect the tribunal to advise themn he had tried to blackmail us and that I would also be contacting the police as this is a criminal offence. He then backtracked and said this not at all what he meant.
He said he had written to the previous owners of the shop who first employed my wife and had asked for a copy of her contract and the details of the holidays taken etc, but the had yet to return this information. He again asked if we could provide this information, I advised that it was his responsibility as the employer to provide this information, not my wifes.
He said that we wre trying to delay him from submitting his forms and that he would have to tell the tribunal. Idenied this and advised him that the fact he did not have this information should not delay his confirmation that he is to defend this claim, and that all the information he would need would not be needed untilthe Case Management meeting.
He repeatedly asked for my wife to go into the shop and discuss this with him, but my wife refuses to due to the way she was treated, also she wants me to be the one to deal with all this as she has no idea what she is doing, I am named as the representative on the ET forms.
I again explained that all correspondence should be in writing and requested that he does not call this number again as this is my telephone not my wifes (this is true I pay for the contract).
He then asked what kind of compensation were we looking for. I explained that this would be set at the discretion of the tribunal. Then he said that he wanted to settle this and asked what it would take to settle. I advised that if he put in an offer in writing we would consider it and respond to it.
He said that he had no experience in this area and that he does not know what to offer. I explained that there was a local case, very similar to my wifes, quite recently where the employer made a young lady redundant without following the correct procedures, only worked 16 hours per week, as did my wife, but was awarded £4000 by the tribunal.
The employer said he was not willing to pay this when my wife had worked for him for only 3 months (The shop was taken over by new owners in Nov 2008, but my wife started working at the shop in June 07).
I again asked him to write to us, and if he wanted to settle the matter to put his offer in writing.
At this point I had been talking about 20 minutes and advised the caller that I was very busy and needed to end the call. Call ended.

Can anyone suggest what we should do?

[Paule]

Re: Are we on the right track?

I would wait to see if his offer arrive, otherwise just wait the ET date to arrive.

They have either made a complaint in which case the Police would have been in contact or they are trying to intimidate you with threats of the Police.
And as they have just tried to blackmail you, you have more of a case than they do anyway.

Anyway on the basis of what you said the Police would probably do sod all, as its just words against each other.

I would wait for the ET to take place, unless you get an offer which you think is fair.

[dori2o]

Re: Are we on the right track?

Can I just ask.

I have written all of this down and I have kept a copy, should I send this to the tribunal now or is it soimething I should keep till the Case Management meeting.

[Glenn UK]

Re: Are we on the right track?

Personally his threats to you about your wife is probably a criminal matter. You and your wife know how tings were in the shop and have to feel comfortable about dealing with those issues should they come up at any time. I doubt a ET would be interested in this, the police may of course.

I would advise the police along with the details if i was sure of my grounds.

The actions of the shopkeeper sound like unfair dismissal whichever way you or he cuts it.

There are some initial steps set out on the relevant government website as to what you should do before making people redundant. Although they are guidelines the advice we received when we recently made some colleagues redundant was that unless you follow them in spirit the dismissal is almost always unfair.

Since he never discussed the redundancy with your wife prior to issuing the redundancy notice then he has not complied wit the first step, i think there were 3 steps from memory.

With regards to your wifes length of service, i am not sure but think her service would be considered broken since she has two different employers. I could be wrong though, whichever way is right though this would impact on your wifes entitlement to redundancy pay.

in essence an employee is not entitled to any (unless i guess there is an agreement in their contract of employment) until they have served at least 2 years.

The entitlement then is calculated on their length of service and age but in truth stat redundancy is not a lot of money.

HTH

Glenn

[fuzzybrain]

Re: Are we on the right track?

I don't think it does count as broken service as the comany was taken over, which was out of the control of the employee. When a company changes ownership i believe that the employess rights are protected. Any benefits an employee has built up (such as sick leave/annual leave etc) and also their length of service is also protected and can not altered unless a new contract is signed.

I think that the broken service only applies if the person actually leaves the company, not if ownership of the company is transferred.

This might be a useful link http://www.redundancyhelp.co.uk/PayQuick.htm

[Glenn UK]

Fuzzy

i am not certain either of us can be certain about whether the employment was continuous.

TUPE appears to be relevant try this link

http://www.businesslink.gov.uk/bdotg...4450319&r.s=sc

i think it depends on exactly what was sold. It may be that the employment is continuous or it may not.


Unless we know the basis of the transfer of ownership then i don't think we can know.

HTH

Glenn

[old_andrew]

Re: Are we on the right track?

Hi I only came across your thread this morning is there any news on your claim.
I interesting point is that about the owners friend helping out, I hope this friend has the correct documentation to work in the UK, if not the owner can be fined £10,000.

Andy