Successful ET claim still unpaid.

[bluebottle]

Re: Successful ET claim still unpaid.

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

Unfortunately, civil servants are not good at keeping tabs on companies under contract to government departments, Eloise. Quite often, we would be the last to hear about it. It was very frustrating and would result in our Detective Superintendent ringing senior civil servants and giving them an earful.

[bluebottle]

Re: Successful ET claim still unpaid.

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".

Although we received training in the criminal aspects of Company Law, we were not the ones who investigated them or prosecuted. It was usually Trading Standards, OFT, HM Customs & Excise/HM Inland Revenue (now HMRC) or the Department of Trade & Industry (now BIS) who dealt with that. If any offences falling under the Criminal Law e.g. False Accounting, were disclosed or became apparent during the course of an investigation, that is when we got called in, usually, with a forensic accountant or two in tow.

[teaboy2]

Re: Successful ET claim still unpaid.

For the OP!

Does the company own any property such as buildings etc?

If so you could apply for a charging order on said property, which would mean if the company is liquidated or the property is sold, you would get the money owed.

[Citypoint]

Re: Successful ET claim still unpaid.

Thank you for your continued replies, my apologies for a lack of response I have been away all weekend. I hope you all had/are having a nice Easter weekend.

MissFM,

The employer was essentially both companies. Each company was put on the ET award as my partner had her employment contract with one company, but continued to receive wages from the bank accounts of the second, which she had worked for before the new company had been set up for a new site in London.

Sapphire,

Thank you for your offer, that would be greatly appreciated, I will check with my partner and contact you shortly.

Flaming Parrot,

It was more just my wishful thinking that I might have been able to make a claim against a director personally. As for the two companies, they are both limited, but as yet they are not both in liquidation, I cannot say in fact if either are but I am led to believe that this is the intention in due course if the ball has not already been sent rolling.

Teaboy,

Unfortunately as far as I am aware the company does not own any property to look at a charging order. Offices were just leased and they have subsequently moved out of those offices now (again due to some form of dispute with the owners I understand). The company currently operates out of premises above/below/adjoining (not quite sure) the directors own residential address (although I do not know the arrangements/ownership etc of said building so will try to investigate). Registered address at companies house for both companies is now her accountants.

[Citypoint]

Re: Successful ET claim still unpaid.

Good Morning All,

Hope you are all well.

Just a further note to the above thread. We have received in the post the "notice of hearing of application" where the employer has as suggested above requested through an N244 form for the court to make an order to allow her to pay the outstanding debt in instalments. The employer has clearly stated on the form that one of the companies listed on the order has ceased trading in Nov 2012 and is in the process of being liquidated, and that the second company in turn has suffered severely detrimental effects as a result and that insolvency is a real possibility. Part 10 of the form asks what information/evidence the employer would be relying on to support the application and the employer has listed the original orders made against each company and an accompanying letter in which she states again that one company has ceased trading and that the second which relied directly on the first is now expected to cease trading. (so it has now gone from a possibility to an expectation). From what I can gather the employer is not going to provide any further information relating to income/outgoings etc to demonstrate why she can only pay the instalment amounts. Surely, the court would not grant this application? My questions now are as follows:

Is there a specific form or response I need to reply to the court with to indicate our intention to object to this application or do we just turn up at the hearing? Having spoken to the court yesterday they simply said yes you should probably attend, however unlike with the tribunal process that stated quite clearly what was expected of each party this paperwork just seems to outline that a hearing is going to take place.

In addition I know that the employer does currently at least still have equipment that could be seized to cover the debt (although as this equipment directly relates to the operations of the company, not sure if they can be seized from what I have read?), does anyone know if a charging order as teaboy suggested for property can be applied to equipment? To clarify, I know that a HCEO can carry out an inventory of goods to seize should this application be granted and subsequently defaulted upon but I am thinking a charging order granted by the court so that if the application to pay in instalments is granted and then as expected the company is liquidated, then the valuable (in excess of £30K) equipment would have to be sold and my partner receive her monies owed?

Any thoughts welcome

Citypoint

[Eloise01]

Re: Successful ET claim still unpaid.

And I am afraid that there is no guarantee that a court would not grant an application to pay in installments - if that is all they can afford (and that is up to the court to decide that) and the alternative is to still not get the money and force insolvency on the company, then yes, they could decide in the companies favour.

You could certainly obtain a charging order against any asset of the company - assuming the assets are actually theirs. It is not just buildings.

I think what people fail to appreciate or understand (and I am not arguing the case - simply explaining how it works) is that a company is a "person" and a debt is a debt. If the person owes a debt, the the law can be punitive if that debt remains unpaid, but it cannot get blood out of a stone. This is no different from the person on one of our other boards who owes council tax or credit card bills. The law is neutral - it does not pass judgement on how someone ends up owing a debt. So if Johnny says he'll pay his council tax debt in installements and he can afford £15 per month, the court is likely, if this all seems reasonable, to agree it. The fact that Johnny may have multiple debts and no way is it going to get paid, or intends to run off to Spain is speculation and the court can't assume that is what he is going to do. On the other hand, Johnny may have just had a sticky patch and got into debt and he really is going to pay up and he has every intention of clearing his debts. They don't know that either. This is absolutely no different. And your debt is of no greater importance than any other debts. So the court will look at what arguments are put on both sides, but the likelihood is that yes, they would seriously consider allowing installments. After all, since the company says it does not have the money to pay you in a lump sum, you aren't likely to see it if that is what they order. A court tends not to order things that simply aren't going to happen. So the court isn't going to tell Johnny that he must pay the whole £365 council tax bill owed if he hasn't actually got it.

Now this isn't directly my area of law - I don't deal with enforcement of awards or debt. But I do think that you should get some advice - a local law centre or CAB may be able to help - because if the company does go into liquidation, even with a charging order, I am not sure that this will make your debt a priority debt over and above any others that may exist. Or what it may cost to obtain one - which may be good money after bad.

[Citypoint]

Re: Successful ET claim still unpaid.

Thanks for that Eloise, duly noted.

Just to update; with the hearing for application scheduled for 25th April, we have subsequently received two letters in the post today from the employers accountants. The letters are identical (one for each company) stating that both are commencing liquidation proceedings and inviting us to the creditors meeting scheduled for 30th April.

Firstly, does anybody know if the hearing is likely to still go ahead giving the fact they are now liquidating? (We will obviously speak to the courts early next week). Secondly, from what I have read online I would presume my partner would be classed as a 'preferential creditor' - I am happy to stand corrected on this if anyone can clarify?

As I would expect (and as a couple of you have suggested) any valuable assets are likely to be shifted before any formal process can take place. As stated earlier in this thread, we were holding off from instructing the HCEO to go in and seize goods based on the fact that the hearing for the variation of order was coming up. Following this latest development, would it be advisable to re-instruct the HCEO to go in, because we are aware that she will certainly be operating as normal for the next 2-3 weeks?

I would really appreciate any advice/points of view on the above.

Many Thanks.

[Eloise01]

Re: Successful ET claim still unpaid.

Insolvency isn't my area of law - but in employment matters preferential creditors are employees and since your OH is not an employee, I do not think she gets any special treatment. Happy to be shown otherwise though - as I said before, the aftermath of a case isn't something I deal with directly unless it involves appeals. My guess, however, would be that the assets are already gone or that the application for insolvency has already been made, so the HCEO will be powerless to act. But by all means speak to them. It may also now be worth speaking to the Redundancy Payments Service, who deal with tribunal awards where the employer is in liquidation, to see what help they can offer.

[Citypoint]

Re: Successful ET claim still unpaid.

Good Evening All,

I thought I would provide an update to this story for those who have been assisting, in addition I have a few further questions.

We attended the court hearing on 25th April for the defendants application for a variation of an order (to pay in installments). The defendant failed to show up, her solicitor having written to the court informing them of the liquidation in process, and subsequently the judge dismissed the application and awarded us further costs for our inconvenience.

The creditors meeting was held on 30th April, however, neither I nor my partner were able to attend as I had to fly overseas for work at short notice and my partner could not find last minute childcare.

The outcome of the creditors meeting (as many of you alluded to) was that the company has 'limited' assets and there would be little if anything to distribute among the outstanding creditors after the administrators fees had been taken out. We have contacted, and are in the process of filing a claim with the Redundancy Payments Service to cover the basic award.

To further outline the award made to my partner, part of the award was for unfair dismissal, however, approximately half was for sexual discrimination. Is there any possibility of proceeding to sue the director personally for the sexual discrimination element? (on a personal level, unrelated to the company). Can anyone comment on the likelihood of this being successful?

The employer is continuing to operate, but now as a sole trader, using equipment purchased from the liquidated company as valued by the administrators. In addition, she is continuing to use the liquidated companys' website and email accounts. Is this allowed? And if not, is there a way that this can be stopped?

Any comments or advice would be very much appreciated.

Many Thanks,

Citypoint.

[Eloise01]

Re: Successful ET claim still unpaid.

A common enough story, I am afraid. You cannot now sue the director individually. That may have been an option in the case originally, but probably not. This sort of action is more common where an employer is the respondant and individual employees are associated with the actions. The director was a director, their actions covered by limited liability. I wouldn't suggest throwing good money after bad here.

[CleverClogs]

Re: Successful ET claim still unpaid.

A common enough story, I am afraid. You cannot now sue the director individually. That may have been an option in the case originally, but probably not. This sort of action is more common where an employer is the respondant and individual employees are associated with the actions. The director was a director, their actions covered by limited liability. I wouldn't suggest throwing good money after bad here.

Would that still apply if one could shew that the company had been trading whilst insolvent?

[Eloise01]

Re: Successful ET claim still unpaid.

Yes - trading whilst insolvent is an entirely different action. You cannot sue someone for one thing because they may have done something else. And I am afraid that, in any case, there are very few actions taken for trading whilst insolvent. It isn't quite as simple as people think and the test of wrongful trading is much more complex.

[Citypoint]

Re: Successful ET claim still unpaid.

Well that pretty much brings us to the end of our pursuit then unfortunately, seems like the whole process is such a waste of time when it is so easy for employers to just liquidate and start again leaving a trail of destruction. Anyhow, many thanks to all those that have offered their views, knowledge and advice, particularly Eloise, your help has been very much appreciated throughout this process. This is a fantastic forum guys and girls, keep up the great work. Regards, Citypoint

[Eloise01]

Re: Successful ET claim still unpaid.

You are welcome, and I am sorry, but yes, you are correct - this happens too often and too easily. It will be no consolation that it actually used to be worse, as it was nigh on impossible to get money out of employers even if they didn't liquidate first, if they chose not to pay up. The fault here isn't employment law (for once, thank God). The fault lies in business/ insolvency law. It is too easy to phoenix companies, and for directors of one company simly to liquidate and set up another, often with themselves as directors again (although I have seen cases of directors who have been banned simply setting up companies in their wives or childrens names). There needs to be a much more rigourous system - we don't want to punish ordinary people whose companies just happen to fail leaving debts, but equally it is far too easy for the deliberate to walk away and do it all again.