Successful ET claim still unpaid.

[Citypoint]

Good Afternoon All,

I am a newbie here and this is my first post, any advice would be greatly appreciated. I'll try to keep it succinct.

I work in finance with limited legal knowledge but represented my partner through her employment tribunal.

My partner was dismissed shortly after announcing her pregnancy and so we put together a tribunal claim for unfair dismissal and sexual discrimination, this was back in December 2011. We finally got to the hearing in Oct 2012 and the respondent failed to show up and the case was awarded to my partner to the sum of nearly £7000. The respondent had pursued the claim right up until a couple of days before the hearing when her solicitors pulled out after receiving our bundle of docs saying their council agreed she did not have a case and she had not been honest with them etc. (just pointing out the type of character her employer is as this will be relevant shortly). No payment was forthcoming and so after the time period for settlement of payment had elapsed we applied to have the judgement moved up to the high court for enforcement in Dec 2012. The high court writ was granted and the enforcement officers were due to attend her premises this week but have just received an appeal for a stay of execution from the employer and apparently a hearing has been scheduled for about 3-4 weeks time. (we have yet to receive any notification of this, just heard from the enforcement officer today, expecting papers in the post shortly) apparently the employer has requested on this appeal to make payments of approx £500-600 per month or so over the course of a year.

Now, we are also aware that another former employee who was also unfairly dismissed after my partner has filed an employment tribunal claim with a hearing set for a couple of months time and this claim is believed to be for in excess of £20k with a good chance of success. We are under the impression from very reliable sources that the employer is considering liquidating the company, even more so now with this second claim.

Our thoughts are now turning towards the best way to proceed? The enforcement officer suggested perhaps holding off on going in to seize goods, attending the upcoming appeal but suggest that if the employer wants to pay in instalments that the initial payment is a much larger percentage of the overall debt, because our expectation/fear is that we agree to her proposed payment plan only for my partner to receive a payment or two before the company is liquidated. Alternatively we could instruct the enforcement officer to go ahead next week to seize goods, but he said the risk there is that her appeal is upheld and they then have to return the goods and WE would get hit with some court costs??? If someone could clarify on this point also it would be helpful.

Any thoughts or suggestions or comments regarding similar situations etc would be warmly received.

Many thanks for taking the time to read.

Citypoint

[Eloise01]

Re: Successful ET claim still unpaid.

I am afraid that the advice you have received is spot on. There is substantial risk here no matter what you decide to do, and no court will rule on the basis of what someone might do. Perhaps the only surprising factor is that the liquidation hasn't yet happened. An unpaid tribunal award is subject to some guaranteed payment if the respondant does liquidate (from the Redundancy Payments Office),but only the basic awards.

[Citypoint]

Re: Successful ET claim still unpaid.

Many thanks for your comments Eloise, I am baffled however as to her having a chance of success in terms of having a stay of execution upheld. From limited reading on the subject today, I understand the employer would have to show why the amount they suggest for instalments is considered reasonable and the maximum they can pay? we would reasonably suggest otherwise! Also would it have any sway in the court if I were able to prove at very least her intent to liquidate the company? and the fact that she did not even show up to the original hearing shows little regard for the system. Is there any angle you would know of or criteria she could meet in order to have the stay of execution granted?

[Eloise01]

Re: Successful ET claim still unpaid.

These things are impossible to predict, although if she is planning to liquidate the company, the assets are almost certainly gone by now, so it is probably moot. If there are few assets and the company cannot pay, the court is unlikely to say they have to pay anything other than affordable installments. They court has no power to order payments which the company cannot afford. But if you could prove an intent to liquidate, which may not be easy, it is still unlikely to help because it would still be a matter of what the company can afford. All they could do is order payment. Then the bailiffs go in. And I'd lay bets they find nothing. It's probably already gone. Sorry, but that is the most likely reality. She's had months to take anything of value.

[Citypoint]

Re: Successful ET claim still unpaid.

ok thank you, I shall keep the thread updated of our progress or lack thereof!

[bluebottle]

Re: Successful ET claim still unpaid.

What you say, Eloise, echoes a situation I used to come across as a CID officer. One of the police forces I served with often had dealings with companies that held or were bidding for government contracts. The sudden liquidation of such a company would start alarm bells ringing. When we got to premises, the management of such companies had already cleared things out and scooted.

Sorry to be a harbinger of doom, Citypoint, but I'm afraid what Eloise says is true. Both she and I speak from experience in our own particular fields.

[MissFM]

Re: Successful ET claim still unpaid.

One quick question Citypoint (to clarify the blindingly obvious sorry) - is this definitely a Limited Company? (you haven't actually spelled it out)

[Citypoint]

Re: Successful ET claim still unpaid.

Yes in hindsight, it would probably have been more sensible to make the original claim against the employer personally rather than against the company. To clarify, yes the company is a ltd company. In fact the ET award was made against two companies, both of which are ltd. Our other option is obviously to get the enforcement officers to continue next week, as I am fairly confident that certain company assets will still be there as she is still operating and intending to do so up until this hearing.

[MissFM]

Re: Successful ET claim still unpaid.

That's interesting - I wonder if there is any way that she could be held personally liable should the companies be wound up? Was the employer one or both of the companies or the individual?

[FlamingParrot]

Re: Successful ET claim still unpaid.

Yes in hindsight, it would probably have been more sensible to make the original claim against the employer personally rather than against the company.

Presumably your employer was the company, which is a separate entity from its directors and shareholders, how could you do that?

To clarify, yes the company is a ltd company. In fact the ET award was made against two companies, both of which are ltd. Our other option is obviously to get the enforcement officers to continue next week, as I am fairly confident that certain company assets will still be there as she is still operating and intending to do so up until this hearing.

Are they both in liquidation?

[Eloise01]

Re: Successful ET claim still unpaid.

It is imposible to cite an individual director on liability instead of the company - who is the employer, not the individual.

[Sapphire]

Re: Successful ET claim still unpaid.

If you send me the name/s of the companies via pm I will do a business credit check on them and might find something out, its only a 'might' but it might help.

[Eloise01]

Re: Successful ET claim still unpaid.

The sudden liquidation of such a company would start alarm bells ringing.

What? It took that long? By the time a company have liquidated, they have transferred the alarm bells as well!

[bluebottle]

Re: Successful ET claim still unpaid.

It is imposible to cite an individual director on liability instead of the company - who is the employer, not the individual.

Just as a matter of interest, Eloise, how would that stand if the director of a limited company was guilty of failure to exercise due care and diligence? I can only speak from the viewpoint of fraudulent conduct. However, that in itself raises some interesting issues.

[Eloise01]

Re: Successful ET claim still unpaid.

Just as a matter of interest, Eloise, how would that stand if the director of a limited company was guilty of failure to exercise due care and diligence? I can only speak from the viewpoint of fraudulent conduct. However, that in itself raises some interesting issues.

It would have to be negligence (as a director) or trading whilst insolvent. Bearing in mind that this is company law - so not my area of practice, although it is sometimes "adjacent" - I believe such cases are few and far between. And given the chances of recovering your costs, never mind the £7 grand, are negligible, not worth pursuing. And the latter wouldn't be applicable in this case.

Both are criminal and not civil offences, and I am sure that with your backgroud you will know what is coming next... It is just like perjury. You may be able to prove someone did not tell the truth, but it is nigh on impossible to prove that their intent was to not tell the truth. Just because I am absolutely certain that I saw the perp do the crime, but 12 other people say he was 200 miles away doesn't mean I am lying, but nor does it mean the other 12 people are either. I may be mistaken.

I have fortunately rarely been a victim or witness to a crime. I had a break in many years ago. That is one story. A couple of years ago I was a (close) witness to a smash and grab ramraid at gunpoint at a jewellers. I regret to say that I turned out as good as most other witnesses. I clearly recall the "ramraid" bit of it (at first I thought it was a bad traffic accident), and could probably to this day describe the children in the vicinity. I clearly recall seeing guns and although I am rubbish at guns, could describe them to you now. I recall every second of my own actions in geting people down on the ground or clear. I recall calling the police. I do not recall, and never have, a single feature of the unmasked gun men! Yet I know the features of the people who did it. How? Because although I did not know the people, I actually had seen them before the event. Long story short - they were close neighbours of a friend, and the incident happened two streets away from ny friends house. I didn't know them - but I also did! When I was interviewed by the police (who knew who had done it!) they showed me photo's and I had to honestly say that I recogised them but not from the incident! You know how many witnesses couldn't even be that accurate! The point is, my friend, who was with me, identified them as the gun men. She couldn't possibly have seen them. She was wearing a burqua and niqab and I had thrown her behind a car! I hasten to say that I was not being brave - I was hiding behind the same car! I do digress somewhat, but I am sure you see the point. My friend didn't lie - she told the truth that she thought she saw. Nor did I, although I told a different story to hers.

BTW, yes, the police did catch them, but for murder - there was a falling out amongst thieves and the evidence they needed, which we couldn't give as eye wtnesses to the theft, was forensic evidence in the case of the murdered "colleague".