Help and advice needed for employment tribunal claim please

[spj2212]

Ok we are trying to get wages that are owed to us by our ex boss, and claiming un fair dismissal along with no contract given when started working for him...theres loads...but what I am asking for is a little help, advice and hopefully support. We put a claim in we worked in a shop only 3 employees, he offered us the business as he had another one that he wanted to concentrate on and could not give his all to the shop we were in (i was manager) after we looked at the lease we decided against it and turned him down on jan 9th 2013, he walked in the next day and made us redundant and told us we were out of work from the saturday! we were completly shocked and said you owe us wages still...basically we worked for under minimum wage for 14 months on the understanding we would get back money owed to us in stages when the business had taken off..and it had started bring in profit. anyway he told us to write to him with what we wanted and we were really good and said we know your struggling so will settle for a small amount of what he owed which he decided to ignore...since we have gone to employment tribunial to claim our money and what we believe is unfair dissmissal as at the point of closeing we did not realise of any struggles he was having as with what we saw it was profitting!. I worked 37.5 on average but at busy times we would work till midnight bringing our full day as being a 16 hour day he would not pay us the right money even then, but myself and the girls really wanted the business to work, we did not want to go on the dole and carried on working for him (stupidly) So now we have to prove we worked more than 14 hours as he suggested in the court letter which is just stupid! the shop was open 6 days a week 9 to 5!! only 2 of us running it!! so we have sent a number of things off to his solicitor (of which we can not afford, how he can after making out he is skint!) including our P45 which works out to just over £100 a week! a pay slip showing the same, he's claiming he paid 150! so lie number one is shown already, he's claiming we knew of finiancial problems, we recieved no letter confirming this! we were supposed to work to the sat but he came in late at night on the day he told us he was closing the shop on us and changed the locks on us! We have lots of wittnesses to say we worked all hours in the shop and the shop hours and the fact they hardly ever saw him. DO you think we are doing the right thing here as we are a little un nearved that he has a solicitor... I had to confirm the address earlier today to his solicitor he said oh yes I need to send you my documents too. I was like well yeah because the deadline for this is tomorrow. he said yes I have some for you but I will have to forward the other peice of evidence to you afterwards as it's not arrived! Er is that allowed when the courts have given us both 14 days??? I am started to think this is over my head x

[Eloise01]

Re: Help and advice needed for employment tribunal claim please

You are letting your emotions run away before engaging your heads here - understandable, but not entirely helpful to you or me!

Lets get the simple thing out of the way. Documents in ET's are often late. If they don't arrive then you inform the tribunal, but it highly unlikely that anything will be done about it. Sorry, but that is just the way it is.

I am unclear on what basis you think you can claim unfair dismissal - you were made redundant and the shop closed with immediate effect. That may mean that you are owed notice pay (from what you say, redundancy pay isn't applicable) and accrued holiday pay; and you may possibly be able to claim an award regarding lack of consultation (assuming that you made such a claim - I am not sure that you have, in which case that claim is probably lost by this stage). But the bottom line is that if he closed the shop then that is his right - you have no right in law to argue that it was profitable, or to argue over the reasons for redundancy, because it doesn't matter whether they are true or not - an employer wishes to close a workplace, and does it. That's the end of the matter there. So on what basis are you claiming unfair dismissal?

I am very unclear about the claim in relation to the minimum wage. Regardless of how many hours you worked, I think you are saying that the employer is claiming that you were contracted to work for 14 hours a week. Is that correct? If so, what evidence do you have that the employer authorised and agreed overtime - because no matter what is the fact of the hours you worked, you must show not that you worked them, but that the employer agreed that you should work them. At a very basic level, employees cannot just choose how many hours they work, or choose to work overtine, and expect to get paid for it - there must be an agreement of some sort, even if it is verbal, with the employer.

Do I think you are doing the right thing? Well yes. But my fear is that it is a little late in the day to be trying to figure out what, if any, claim you have or should have put in, if the tribunal is only two weeks away.

So the essentials questions here for me would be:

Did you make any claim for lack of consultation prior to redundancy?
Have you any evidence, not of the hours that you worked but that the employer actually agreed to these hours - or did you as the manager agree to them, in which case, with the best will in the world, you are claiming pay for hours that you worked that you approved??? Which isn't exactly a strong position.
On what basis is the employer claiming that your working hours were 14 per week? Is there anything in writing - or verbally ageed - to say this?

[spj2212]

Re: Help and advice needed for employment tribunal claim please

no contract was given, I was orginally asked to work a 6 day week till a 2nd employee could be afforded. when the second employee came along the hours for myself were droped to 5 days a week. he never paid me min wage with the agreement not in writing was verbal that he would pay me back... as for unfair dismissal we were told that we had a case by a solicitor as to how he made us very suddenly redundant making us believe he was going to carry the shop on. he has said that he paid us £10 a hour but the wage slips show as £8 an hour if we did a 14 hour week which we did not it was a 37.5 hour week. It's really hard to explain but he was a friend and I thought I was helping by making the shop work to its best advantage to be on such a low wage. but like i said he said he would pay me back.
I do not know how he is going to prove we only did 14 hours a week when the shop was open 9 to 5 6 days a week with 2 employees and a saturday girl. he can not possibly say he worked the other hours as he is not a florist and couldn't possibly do the job as he no idea at all about any of it.
I don't know if that helps at all Elouise but thank you for your response its good to talk to someone x

[Eloise01]

Re: Help and advice needed for employment tribunal claim please

On the matter of redundancy - where is your evidence that he carried the shop on? You did not mention that the shop remained open and he employed new people to replace you. Because that is what you require, and if the solicitor advised you based on what you believed might happen rather than what did happen, then they would have advised you incorrectly. There cannot be an unfair dismissal if the shop closed - this is what you said happened. Sudden redundancy does happen, and with only three employees and a small employer, the lack of a consultation period - which can be very short indeed with the numbers involved - is not likely to feature as a major slip. Assuming, of course, that you even claimed for failure to consult, which I am getting the horrible feeling that you didn't. If all you claimed is unfair dismissal, and the employer did in fact close the shop, then I fear, based on what you have said here, that your claim is doomed to fail. Closure of the premises would be a redundancy situation, and you haven't demonstrated any reason for it to be unfair. As I said, the issue of whether it was profitable is not relevant - a tribunal will not examine the reason for the redundancy, only the fact of whether it was a redundancy, and it appears it was.

I get the whole "we thought he was a friend" - heard it all a million times which should tell you something about working for friends!But I am afraid that the decision on hours and the national minimum wage will be in the lap(s) of the tribunal judge(s). Where there is no written contract the tribunal must decide what it believes to be true, and that is something that will be determined on what evidence there is available; the credibility of the witnesses; the story told, and, I am afraid, the cleverness of the lawyer. You may say that he could not possibly have done the job - that is your opinion, but it is not evidence.

If your case is quite close at hand, have you not had a case management discussion? Because many of the matters as to the particulars of claim (that's jargon for what you are claiming) are addressed there, and I would be surprised if, given what you said here, the unfair dismissal claim was allowed to go forward.

[spj2212]

Re: Help and advice needed for employment tribunal claim please

we see your point on the unfair dismissal the other business he has a different shop elsewhere. We were never given a contract of employment.

As for the hours I have re read what he has said and he said we refused to work more than 14 hours so I am hoping then with our many wittnesses this can be proven wrong.

[Eloise01]

Re: Help and advice needed for employment tribunal claim please

Is the "different shop" also a florists? If so there may be an argument - but to be honest it is something of a stretch - that the staff of both shops should have been put at risk and a selection as to who remained in employment in the other shop made from that group. But given the size of the employer, and the fact that they are different shops, it's a stretch that may be too far.

I assume that your many witnesses will be attending the tribunal and that you have submitted the evidence that they will give in advance of the tribunal hearing. Because a tribunal will not accept a witness statement if the person giving that statement is not at the tribunal to give evidence in person.

[spj2212]

Re: Help and advice needed for employment tribunal claim please

no it's a different shop so not looking good there

As for the witnesses they are all aware and all businesses close to shop including the town manager and the supplier to the shop so think we are good there x

[MissFM]

Re: Help and advice needed for employment tribunal claim please

Am just wondering if there's any merit in simply taking him to the small claims court for money owed? It seems that employment law is unlikely to offer a redress - but you have been swizzled. I'm sure more qualified beagles will correct if wrong but you did the work and you had a verbal contract to do it, whether as an employee or by agreement (ie self employed, casual labour, etc) - and he owes you the money for that work IMHO.

[Eloise01]

Re: Help and advice needed for employment tribunal claim please

Am just wondering if there's any merit in simply taking him to the small claims court for money owed? It seems that employment law is unlikely to offer a redress - but you have been swizzled. I'm sure more qualified beagles will correct if wrong but you did the work and you had a verbal contract to do it, whether as an employee or by agreement (ie self employed, casual labour, etc) - and he owes you the money for that work IMHO.

Whatever the court, the OP still has to evidence the money is owed, and they are weeks away from a tribunal which, for now, is still free. What is missing is ANY format of agreement as to how many hours worked. And hence whether any money is owed. So there is no alternative route that requires a different standard of evidence. The OP should therefore stick with the route they have chosen.