Can Former Employer Counter-claim

[Binuchander]

Thank you ULA and Atticus - appreciate the confirmation

[Binuchander]

Witness statements and updated schedules of loss are due to be exchanged in early June with a hearing date of early July.
my original claim was for unlawful deduction of wages in relation to extra payments that my employer was making to me for additional income brought into the business by me taking on extra responsibilities. I was paid between 50-60% of this extra income for 13 months prior to my resignation and then as soon as I resigned, they refused to pay me any further bonuses whilst I worked my 3 month notice period.

Please can I ask - I have read about bonuses being eligible for holiday pay at 12.07% and that employers should either state in the contract that the bonus includes holiday pay or make it clear that on the payslip that the amount includes 12.07% holiday pay.

In my ET1 I didn’t mention holiday pay as wasn’t aware of this at the time - can I add on 12.07% to my schedule of loss to see if the judge agrees?

[ULA]

Sorry not quite clear on the bonus was it one-off periodic payments or were they a regular part of your take-home pay? Was this paid in addition to your salary for regular fixed hours

If you can prove that is was a regular part of your take-home pay and it was not taken into consideration for calculation of any holiday pay then potentially you can claim for the first four weeks of annual holiday.

[Binuchander]

Hi ULA

Thank you for your response. The bonus was a regular payment as part of my take home pay that was paid in addition to my regular salary for fixed hours for the last 13 months of my job. I am looking to add an amount equivalent to 4 weeks holiday to my schedule of loss.

Can I backdate the holiday pay for the whole 13 months?

Does it matter that holiday pay on the bonus was not mentioned in my ET1?

Also are you aware of where I can obtain a Schedule of loss template?

Thank you in advance.

[ULA]

I believe you can back-date for up to 2 years so the 12 months is fine. You cannot request all your holiday pay if you were paid based on your basic salary, you can only try to claim back the difference based on your bonus payment element.

This will have to show as a separate line item in your Schedule of Loss (SoL) and it will then be up to a Judge when considering remedies, if you succeed in your claim, as to whether or not to allow this even though it did not form part of your ET1 claim.

I have updated a template you may be able to adapt which I have attached.

[Binuchander]

Thank you once again ULA - your help is much appreciated.

[Binuchander]

Witness statements are due for exchange in 5 working days time. I received some additional information from my GP today that is useful to my case (shows I was on sick leave and not on annual leave on a certain date my employer has stated I was on annual leave).
I sent this to the respondent requesting that they add it to the bundle but they have unhelpfully come back to me saying this will take 5 working days to be added which is the date of exchange for witness statements and will then be too late for me to reference.

Is it possible to request an extension from the ET to the date for exchange for witness statements?

If so, is there a specific way this should be worded?

[ULA]

Are you referring to that new document in your witness statement?

It does not make any difference at what time they add it to the bundle so long as goes in, what you need to ask them, which they can easily do, is what the page number/s will be when it is included. More than likely they will put it at the end.

Unless it impacts the timing of documents that need to go to the tribunal then both paries can agree between themselves a 14 day extension of a case management order date.

[Binuchander]

Thanks ULA - they are being very obstructive in pretty much everything. I have asked them to add it to the end of the bundle but I suspect they won’t which will then make a mess of all the referencing in my witness statements
The information disclosed contains some quite personal gynaecological information but it does support my case so I have decided to request for it to be added.
Can I ask - is it possible for me to add it to the bundle even though the case management orders state that the respondent is to produce the bundle? At least that way I know it is done as I definitely want to reference it in my witness statement.

[ULA]

When is the bundle due at the tribunal?

You cannot add into the bundle as the page numbering and the index will need to be updated.

So couple of suggestions:

1. If it is not added to the bundle then add it as an appendix to your witness statement but when doing so and you refer to the document set out that the respondent refused to add it in.
2. Apply to the Tribunal for that document to be a "claimant bundle" and explain the reason why.
3. Leave it to the hearing and provide the document and your correspondence asking for it to be included as part of further disclosure. The issue with that is you are at the mercy of a Judge agreeing to include it and in any pre reading of your witness statement by the Judge/Panel would not have been able to reference that point.

[Binuchander]

Thanks ULA - I am happy to update the bundle with both the documents I need adding and to update the page numbering so that the new documents are at the end of the bundle.

Do you think that would be acceptable to the tribunal or does the fact that the respondent is responsible for the bundle mean I cannot touch it?

the respondent has stated that they are too busy to do it before date of exchange of witness statements so I would hope that this is seen as working together amicably to bring the matter before the judge.

[ULA]

It all depends on the format of the bundle.

Is it electronic? Do you have a copy? Is it in PDF format? In which case do you have the software to edit PDF?

Is it a hard copy bundle they sent to you? How will you update the page number which is usually typed not hand written? How will you update the index?

Sorry adding a few pages it not always as straightforward as it sounds if you are not the originator of preparing the bundle.

Can you get the respondent to agree to you updating?

[Binuchander]

Format of the bundle is electronic, I have a copy and will pay for the software to edit it. I think I can get it free on a 7 day trial and then cancel it anyway.

the respondent is being incredibly obstructive over everything. They have added documents without sharing them and previously always responded to my emails within minutes but now that I have requested addition of a few items they are not willing to do it until after exchange of witness statements on 4.6.24.

Tribunal date is 2nd July. Interestingly the tribunal haven’t stated what date they want the bundle and witness statements submitting to them but the respondent wants to submit everything to them the day after exchange of witness statements which is just short of 4 weeks before the tribunal hearing

[Binuchander]

I responded a few mins ago but it seems to have not posted - apologies if this is a duplicate post.

The format of the bundle is electronic PDF and I have a copy. I can get the software to edit it for free for 7 days so was thinking of having a go. It is about 10 pages long I would be adding at the end of the bundle and will update the index as well and share with the respondent a few days before exchange of witness statements which is better than they are planning to do which is to update the bundle and share on the date of witness statements.

Exchange of witness statements is 4.6.24 and tribunal date is 2.7.24 but interestingly that case management orders do not state on what date they want the bundle and witness statements to be submitted to the ET.

Could a judge criticise me for adding 10 pages to the bundle when the respondent is refusing to do so before exchange of witness statements?

[Binuchander]

Hi

I have tried a couple of times this afternoon to respond but my response keeps on getting not uploaded when I submit post reply so apologies if this is a duplicate response.

The bundle is in PDF electronic format and I am happy to get the software to edit the latest copy that I have.

Exchange of witness statements is due 4.6.24 and the tribunal date is 2.7.24,.

Interestingly there is nothing stated in the case management orders about when the bundle and witness statements need to be submitted to the ET but the respondent has said they want to exchange witness statements on 4.6.24 at 23.59 and will be submitting the bundle straight away so I really do wonder what they have up their sleeve.

On the basis that we have near agreed bundle and the respondent has said that they cannot update it before the date for exchange of witness statements, do you think a Judge would criticise me for adding in my documents, updating the index and sending it to the respondent in advance of the day for exchange of witness statements?