Not paying Redundancy pay and unfair dismissal

[Lefty]

Myself and 3 colleagues have been working at a bar for 7 full years. On saturday 4th July we all received a call to say that we wouldn't be opening on Monday and the bar was finished.
Yesterday (Tuesday) we met with the owner to find out what was happening.

The owner has been paying into the company for a long time to keep it a float but has decided to stop doing that.
He has offered us all 4 weeks pay, however I notified him that we should be entitled to the statutory minimums in notice period and redundancy. He didn't know this as 'he's not done this before' and he said that he won't be personally paying it. When asked if he was going to officially make the company insolvent, he initially said no.
The owner is a bit of a strange guy and can often be intimidating.
He now thinks that we are greedy and out for all we can get.
He has now agreed, for the moment to make the company insolvent.

I think we can claim from the NI fund once this happens but what happens if he doesn't make it insolvent.

Also, he is planning to re open the bar in a few months with a new team.

He's so intimidating that all staff recorded their meetings with him.

I had a call at the bar while I was waiting for him and it was a man wanting to speak to the owner about an interview for the managers job. I confronted him about this and have a recording of him saying that he isn't looking for a manager at all, he's looking for a partner to invest.
However a quick search on gumtree shows that 5 days ago (before making us redundant) a member of staff from his other business posted an advert for a manager/assistant manager. There is no mention of partner. He has advertised 2 of our jobs before making us redundant.
I also have him on another recording telling another staff member that he has interviews next Wednesday for a new manager.
Recording were all from Tuesday when we had the meeting.

Now I don't know where we stand if he doesn't make the company insolvent. He has already said he will pay all suppliers himself, so there will be no debt other than what is owed to us.
I don't know if unfair dismissal is part of the same claim/case or is something different.

Any advice would be brilliant. I am going to ring acas but I would also appreciate some help from here

Thanks.

[teaboy2]

Re: Not paying Redundancy pay and unfair dismissal

MY best advise is that you contact ACAS immediately and advise your colleagues to do the same. The employer is clearly acting unlawfully, not only by making you all redundant, but by also advertising your jobs. Hes falsely claiming the business is insolvent and propped up by his financial input, yet the evidence suggests the opposite. Bringing in a new teams of people and getting rid of the old isn't going to make a non profitable business profitable at the drop of a hat. If anything, since its a bar, it will piss off the regulars, who i assume from the sounds of this guy are not keen on him anyway. Which would suggest the problem his bar is having is him himself and his attitude!

And yes it would be unfair dismissal via redundancy but also unauthorized deductions from wages, which includes non payment of redundancy, notice pay and accrued holiday pay!

[Lefty]

Re: Not paying Redundancy pay and unfair dismissal

I spoke to acas. I'm not sure if the people you get on the phone are trained or are just a call centre because the lady didn't seem that confident with her answers.

The owner is rarely at the bar, but limits what can and can't be done there. He doesn't like change and has left the bar in central London with no kind of refurbishment or revamp in 8 years. The reason for its failing is that the customers do not like it in there. He has employed people to find out this but still didn't act. He just left the place to die without changing a single thing to make it nicer for the customers or to modernise it all because 'he likes it how it is'.

But this is all beside the point

For the moment he has agreed to make it formally insolvent but when he finds out its going to cost him around 5k to do so I predict that he will change his tune.

Acas have advised that we all calculate what we are owed and send him a letter detailing that and also detailing that he hasn't followed the correct procedure and to give him 2 weeks to pay it.
This I think will make him angry and he is they type of person and has enough money to just mess with us out of spite.
If he receives 4 of those letters in pretty sure he will just string us along

So what do I do?

[joni]

Re: Not paying Redundancy pay and unfair dismissal

Myself and 3 colleagues have been working at a bar for 7 full years. On saturday 4th July we all received a call to say that we wouldn't be opening on Monday and the bar was finished.
Yesterday (Tuesday) we met with the owner to find out what was happening.

The owner has been paying into the company for a long time to keep it a float but has decided to stop doing that.
He has offered us all 4 weeks pay, however I notified him that we should be entitled to the statutory minimums in notice period and redundancy. He didn't know this as 'he's not done this before' and he said that he won't be personally paying it. When asked if he was going to officially make the company insolvent, he initially said no.
The owner is a bit of a strange guy and can often be intimidating.
He now thinks that we are greedy and out for all we can get.
He has now agreed, for the moment to make the company insolvent.

I think we can claim from the NI fund once this happens but what happens if he doesn't make it insolvent.

Also, he is planning to re open the bar in a few months with a new team.

He's so intimidating that all staff recorded their meetings with him.

I had a call at the bar while I was waiting for him and it was a man wanting to speak to the owner about an interview for the managers job. I confronted him about this and have a recording of him saying that he isn't looking for a manager at all, he's looking for a partner to invest.
However a quick search on gumtree shows that 5 days ago (before making us redundant) a member of staff from his other business posted an advert for a manager/assistant manager. There is no mention of partner. He has advertised 2 of our jobs before making us redundant.
I also have him on another recording telling another staff member that he has interviews next Wednesday for a new manager.
Recording were all from Tuesday when we had the meeting.

Now I don't know where we stand if he doesn't make the company insolvent. He has already said he will pay all suppliers himself, so there will be no debt other than what is owed to us.
I don't know if unfair dismissal is part of the same claim/case or is something different.

Any advice would be brilliant. I am going to ring acas but I would also appreciate some help from here

Thanks.

From what you describe you and your colleagues have a pretty good claim for the following:-
1. unfair dismissal
2. notice pay
3. accrued holiday pay
4. Redundancy pay
5. if you were not provided with contract of employment then a further claim arises.
6. if the bar closed with the intention of reopening as a bar and assets or ownership passed over to the new business here is a possibility of a Tupe Claim. failure to consult/inform

Whether the business is insolvent should be recorded on companies house. if it is not then you should proceed against the company until the company goes into insolvency. the business is not in insolvency just because the owner says so, a insolvency practitioner would have to be appointed to oversea the process.

If the company is insolvent then, yes, you can Claim for the Sec of State /Ni Fund but there are certain limits to the amount you can claim.
You should first write to the employer setting out that you and your colleagues consider that you have been unfairly dismissed and that you are all owed stat notice, holiday pay, redundancy payment etc... you should also state that you wish written reasons for your dismissal and also that you want to appeal against the decision to dismiss. i would also request a copy of your contract of employment and employee handbook at this time.

You will need to check who your actual employer was, was it the owner personally or a limited company. If you have a contract of employment and or wage slips this should help. Just ensure that the company name is actually a limited company and not a trading name.

if you are afforded an appeal hearing then you can use this as an opportunity to obtain information into what has happened to the bar. Did the business close, was it renamed or were assets, stock etc sold transfer to the new bar/business etc.

At the same time you should contact acas and go through the Early Conciliation Scheme. ACAS will try to speak to the employer setting out what you say you are owed including a sum for the unfair dismissal and try to resolve the matter without the need to go to the tribunal.

if ACAS are not able to do this, you can then proceed to issue your claim(s) to the ET for which there is a fee.

You should claim for :-

1. unfair dismissal as your dismissal was at the very least procedurally unfair as your employer failed to follow any procedure in dismissing you. Compensation for unfair dismissal is in two heads, basic and compensatory award. The basic award is calculated like a redundancy payment (so you would not be able to get a redundancy payment in addition to the basic award). The compensatory award is for your loss of income from the date of dismissal until you find new employment on the same income. This is however capped at 52 weeks pay. You of course have to take reasonable steps to find employment and should keep a record of your job search and applications to show the tribunal.

2. Notice pay - you are entitled to statutory notice, unless your contract says otherwise.

3. Accrued holiday pay

4. in the alternative Redundancy pay

5. 25% uplift - as your employer failed to follow the ACAS code in dismissing you and your colleagues
7. Depending upon what occurred with the business - failure to consult under TUPE.

Hope this helps

[joni]

Re: Not paying Redundancy pay and unfair dismissal

MY best advise is that you contact ACAS immediately and advise your colleagues to do the same. The employer is clearly acting unlawfully, not only by making you all redundant, but by also advertising your jobs. Hes falsely claiming the business is insolvent and propped up by his financial input, yet the evidence suggests the opposite. Bringing in a new teams of people and getting rid of the old isn't going to make a non profitable business profitable at the drop of a hat. If anything, since its a bar, it will piss off the regulars, who i assume from the sounds of this guy are not keen on him anyway. Which would suggest the problem his bar is having is him himself and his attitude!

And yes it would be unfair dismissal via redundancy but also unauthorized deductions from wages, which includes non payment of redundancy, notice pay and accrued holiday pay!

i agree that bringing in new staff suggest that the business is still a going concern., so you should continue against the business until you find out otherwise. However for clarity redundancy and Notice pay are not "Wages" and therefore you can not claim these by making an unlawful deduction of wages claim. You can however make a claim for Breach of Contract.

[Lefty]

Re: Not paying Redundancy pay and unfair dismissal

Thank you both.

Joni, how do we do all of this? Do we need a solicitor, what casts are involved? How does the average person go about this?
One concern is that the company has no money and the owner has been paying into it from his own pocket. What if he just dissolves the company? What if he just does nothing? If we win a tribunal who pays us what we are owed.

Sorry for all the questions but we're all in a bit of shock and none of us have the legal know how.

I think the best bet for him and us is if he just makes the company insolvent but he's really spitefull. The sort of guy who would spend a a lot of money making sure we get nothing just to spite us.

[joni]

Re: Not paying Redundancy pay and unfair dismissal

Thank you both.

Joni, how do we do all of this? Do we need a solicitor, what casts are involved? How does the average person go about this?
One concern is that the company has no money and the owner has been paying into it from his own pocket. What if he just dissolves the company? What if he just does nothing? If we win a tribunal who pays us what we are owed.

Sorry for all the questions but we're all in a bit of shock and none of us have the legal know how.

I think the best bet for him and us is if he just makes the company insolvent but he's really spitefull. The sort of guy who would spend a a lot of money making sure we get nothing just to spite us.

Hi Lefty

You should all write a grievance letter to your employer (collectively or individually) setting out the fact that you have all been unfairly dismissed, asking for the reasons for your dismissal and that you wish to appeal against the dismissal/redundancy. You should also set out what you feel you are entitled to i.e redundancy pay, notice pay, accrued but untaken holiday pay etc.
At the same time you should contact ACAS who will commence Early Conciliation (speak to your employer and try to resolve the situation)
if ACAS are not able to resolve the matter or your employer does not respond within a reasonable period of time. you can then issue a claim to the tribunal ( You can do this individually or collectively)
You do not need a solicitor as many employee represent themselves at the tribunal.
there is a fee for issuing the claim in the tribunal (there is fee wavier depending or your circumstances)
There is then a hearing fee which is payable just before the actual tribunal
Don't worry about whether the company has no money etc. issue the claim against the company or whoever your actual employer is. if the company later becomes insolvent you can make a claim from the state (but it will not be for the same amount as you would receive at a tribunal. if it is not a limited company then your employer will be personally liable.
Once you have your judgement from the tribunal you can enforce it e.g obtain a charging order over assets / property or get the bailiffs involved.