Can Former Employer Counter-claim

[Binuchander]

Thank you ULA - I do appreciate your responses.

Please may I ask one more question?

Another thought I had was to make an application to the ET to amend my ET1 and instead of alleging breech of contract, alter it to an unlawful deduction of wages claim. It has been about 10 weeks since I sent in my original ET1 and about 6 weeks since I received back the ET3 with employer's contract claim.
Is it possible the ET would accept my proposed amendment? Would that then mean that employer's contract claim would be dismissed?

[ULA]

Your post#1 states that you made a claim for unpaid wages "The amount I am claiming in underpaid wages is around £1000" This is effectively a claim for an unlawful deduction of wages. So I am a bot confused about your question.

[Binuchander]

Thanks for the quick response ULA - If you look at post 15 I did (rather foolishly) quote breach of contract rather than unlawful deduction of wages - so my question now is, if I apply to amend the claim to unlawful deduction of wages rather than breach of contract - is it possible the ET would consider that acceptable and would that then theoretically strike out the respondent's counter claim?

[ULA]

You state in #15 breach of contract leading to unlawful deduction of wages. Assumed you had stated that as the full details of this claim.

I am sorry to say I cannot answer the question. You can make an application to amend your claim which you would have to copy the respondent. This would have to be considered by the ET and if you were successful, whether that would strike out the counter claim I have no idea - sorry.

[Binuchander]

Thank you ULA - I appreciate you getting back to me

[Binuchander]

Another thought that I had was that my previous employer changed my contract in 2022 (one year before I resigned). Under this new contract, they did enforce pro rata bank holidays and due to the three bank holidays in May 2023, made some agreed deductions to my wages from the bit of the salary that they did pay me in May 2023 (my last working month).
Would the fact that I agreed the new contract in 2022 invalidate any potential claim they may have under my previous contract?

[ULA]

You have more than one contract during your employment, each of which needs to be considered on the contractual terms in operation during the relevant period of your employment.

[Binuchander]

Hello

By way of reminder as it has been a few months since the last post - I left employment May 2023, ET1 went in August 2023 for breach of contract leading to unlawful deduction of wages and the ET3 came back with an employer's counter claim for excess holidays taken.

The date of tribunal is early July and the date for exchanging all documents was last week. I requested a breakdown on several occasions of how my ex-employer had worked out the excess annual leave taken but this was never sent to me.
At 4.30pm on the final date for exchange of documents I received a large file with 8 years annual leave records, a lot of which is false.

I have submitted several documents by the deadline demonstrating this but have recently found some more emails that back up my position.

The respondent has until 30th April to prepare the joint bundle.

Please can I ask:

Can I submit more documents to be added to the joint bundle even though the deadline for exchange has passed?

If so, Can you offer any advice on how I should word such a request to the respondent?

Would a late presentation of documents (albeit before preparation of the joint bundle) go against me at the ET?

Thanks in advance.

[ULA]

There is an ongoing duty on both parties of disclosure, so if documents become available after the exchange deadline but are relevant to the case then they need to be added to the bundle.

When corresponding with the respondent I suggest you politley remind them of the above and say that on reviewing your emails you have found further documents relvant to the case, which you will be relying on and therefore need adding to the bundle. Add that there is still time for them to be included in advance of the 30 April deadline for bundle production.

[Binuchander]

Thank you ULA - that is very helpful

[Binuchander]

Please can I ask a further question about disclosure of information.

A part of the dispute with my previous employer is about the way tax was deducted from my pay and they are saying I owe them some monies related to tax. I have submitted information from an accountant explaining why I don’t owe them anything but only submitted the final actual statement from them saying this.

My ex-employer has now said that I have failed to disclose the entire email trail with the accountant I approached and that this is classed as non-disclosure of information.

Please can I ask whether all professional advice received must be disclosed for inclusion in the joint bundle?

[ULA]

Accountants advice to clients as far as I am aware is not legally privileged. If the content of the email is relevant to the claim regardless of whether or not it harms your case then it will need to be disclosed.

[atticus]

There was a House of Lords case on this, probably in the 1990s. Put simply, only lawyers' advice is subject to legal professional privilege. Others such as accountants may try to give legal advice, but their advice is not privileged.

[ULA]

Thank you atticus for confirming to me and the OP what I thought was the case.

[atticus]

It seems there has also been a more recent case - https://hsfnotes.com/litigation/2013...o-accountants/