Holiday Pay Employment Tribunal Case Settlement Query. Urgent!

[ruf]

Hi

I am very shortly about to attend an Employment Tribunal in order to try and claim back a sizeable amount of Holiday Pay from my former employer. I believe I have a very strong case and up until now, the employer has only offered a very small amount to settle via ACAS, which I rejected. There has been zero contact from the employer since and I have stated to ACAS that I was willing to settle for the amount detailed in my claim, plus the employment fees incurred in bringing the claim. Today I routinely checked my bank account and the employer has paid into my account the amount detailed in my ET1 without any communication whatsoever. There is no payment relating to the fees.

I am very suspicious about the motives of this payment, both because I know the employer very well but also to me it is an unusual move to just deposit this money in my account without the involvement of ACAS and the signing of the COT3 form or any communication at all. I was wondering if anyone could offer any advice as to what my next move should be? I will be speaking to our ACAS conciliator in the morning but any further advice would be much appreciated as there is only a few days to the tribunal and I don't want to get caught out by any potential sneaky moves. Thanks for your time and help.

[paulajayne]

Re: Holiday Pay Employment Tribunal Case Settlement Query. Urgent!

1. Do not spend it.
2. Document it.

Experts will be along to assist.

[Kati]

Re: Holiday Pay Employment Tribunal Case Settlement Query. Urgent!

:bump: for [MENTION=19071]teaboy2[/MENTION]

[judgemental24]

Re: Holiday Pay Employment Tribunal Case Settlement Query. Urgent!

This can be settled wihout a COT3 as i have done one myself..

Any settlement outside of ACAS is normally drawn up between yourself and the respondents solicitor via a consent order if terms have been agreed. Once that has been signed and agreed by all parties the Tribubnal will be vacated.

Tribunals normally need 48 hours notice to vacate the hearing

A consent order is an agreement between the claimant and the respondent outside of ACAS
.
Believe it or not a COT3 is not a legal requirement though the terms of that agreement will be if signed off by ACAS.

A COT3 is a settlement agreement attained through conciliation with ACAS. A consent order is a private agreement between the claimant and respondent/ solicitor outside of ACAS

Speak to ACAS in the morning as you have stated no settlement terms have been agreed including any fees to be paid by the respondent.. Do not spend that money in your bank account until you have the settlement signed off.

Contrary to popular belief ACAS conciliators are not under any statutory duty to give advice or evaluate the merits of any claim made. Section 18 Employment Tribunals Act states that they only have a duty to promote a settlement.


Has your ex-employer engaged the services of a solicitor??

[seduraed]

Re: Holiday Pay Employment Tribunal Case Settlement Query. Urgent!

Open a new account or use a savings account and move the money there from your current account. This makes it harder just to "dip in". Once the matter has been settled and the legaal pars signed then enjoy it .

[ruf]

Re: Holiday Pay Employment Tribunal Case Settlement Query. Urgent!

Thanks for your replies. The employer does not have a solicitor. I tried to speak to the conciliator assigned to the case but she is off, so I spoke to another. They just said that I may not have a valid claim anymore as he has put the money in claimed on ET1 but it may be an idea to remove the money and put it somewhere else. They also said that the employer made it clear to them that they would under no circumstances settle and that they did not understand why ACAS were still contacting them. They advised to contact the Tribunal Office as the case is to be heard tomorrow, I have held off this for a short moment to evaluate where I stand.

I'm obviously not going to go into details but the employer has zero integrity and will pull any trick in the book to get out of the publicity of a hearing and also pay the money. He could easily put in an indemnity claim to his bank to recover the money. I really doubt that he will even agree to sign an order whether the fees are included or not. Does anyone have any advice on this situation? I really need to call the Tribunal office ASAP but any opinions on where I may stand would be hugely appreciated

[judgemental24]

Re: Holiday Pay Employment Tribunal Case Settlement Query. Urgent!

It seems to me your ex-employer is out of his depth.

You simply attend the hearing as normal. It might be wise to print off a bank statement to show what has been placed into your account.

Unless a COT3 or consent order has been signed nothing has changed. Me thinks they will not even turn up tomorrow and the court will probably award you judgement in default if they have no legal representation.

Check with the Tribunal that the case is still listed for tomorrow.

I take it in your schedule of loss you did include the court fees, out of pocket expenses etc as well as the Unlawful deduction of wages??

[ruf]

Re: Holiday Pay Employment Tribunal Case Settlement Query. Urgent!

Thanks for your reply. They are certainly out of their depth. That is my concern that without a legal document, nothing is stopping me being completely done over in this case. I suspect they will not turn up either. Yes the schedule did cover such things.

[judgemental24]

Re: Holiday Pay Employment Tribunal Case Settlement Query. Urgent!

iF THE SCHEDULE OF LOSS IS UP TO DATE THEN YOU HAVE NOTHING TO WORRY ABOUT.

Just turn up at the tribunal tomorow as normal. If they do not turn up and the judge asks for your opinion just say they are showing the court disrespect and requst judgement by default in your favour

[teaboy2]

Re: Holiday Pay Employment Tribunal Case Settlement Query. Urgent!

As others had said, just because they have paid money in to your account with out your prior knowledge, it doesn't mean the case is settled. You can still go to tribunal win the case and gain judgement against them. Though inform the tribunal that money was paid to your account without your prior knowledge, without any formal settlement agreement, and with out any word from the employer about it before or after. You may still be entitled to claim costs (if tribunal awards costs) and any amount in the scheduled loss, that the amount paid doesn't cover!

[FlamingParrot]

Re: Holiday Pay Employment Tribunal Case Settlement Query. Urgent!

I think it's important not to touch the money because using it in any way could constitute implied acceptance of the "offer" (made by paying the money into the bank account).

[mariefab]

Re: Holiday Pay Employment Tribunal Case Settlement Query. Urgent!

Also, be aware that a BACS payment can be recalled by the sender as long as it's done before the cut-off date/time specified by the bank.
So, although the payment will show as cleared in your account it could simply disappear a few days later.

[judgemental24]

Re: Holiday Pay Employment Tribunal Case Settlement Query. Urgent!

Any updates on this please ruf??

[ruf]

Re: Holiday Pay Employment Tribunal Case Settlement Query. Urgent!

Hi,

Apologies for the late response judgemental24, I didn't get any notifications in my inbox that there was a message and had wanted to wait until there was progress in this case to respond.

Judgemental24, to recall the money was definitely the plan, they expected that I would call off the case or simply not attend if I saw the money in my account. I cannot say on a public forum the reasons why I know this to be the case but it is beyond doubt that this was the plan.

The respondent did not attend the hearing, so when I was called in, the judge asked if I had any idea why the respondent may not have attended. I explained about the payment put into my account and expressed my concerns about the actions and motive and my belief that the sum would not be legally mine without some agreement or judgement. The judge was very understanding and agreed that the behaviour was unusual. They said that while a payment had been received and a default judgement could be made, they felt that overriding interests of tribunal meant that the case should remain open so that the respondent could explain what the payment related to. The judge issued an order for the respondent to explain what the payment was for. I must add that the payment was actually less than the amount on my ET1 form, it was the amount I had detailed in a grievance letter sent to the respondent before tribunal proceedings commenced.

The respondent failed to respond, as I remember, they were given three reminders and one final reminder / warning that if they failed to respond or request a hearing, their response would be struck out. They failed to respond and in December 2015 the response was struck out and I was asked to advise the Tribunal if I wished to proceed with my claim, given the fact that a payment had been made. I advised the Tribunal that I felt I had no choice but to continue with my claim as no progress in confirming my right to that payment had been made. They subsequently advised my that as the respondent's response had been struck out, the Tribunal proposed a default judgement be made and for me to provide a full quantification of my claim, together with an explanation as to how this was calculated so that the Tribunal can consider this.

When I submitted my ET1 form, I gave detailed calculations as to how the amount was calculated. In addition, my bundle given to the Tribunal gave further information. I have to respond to this request this week and I have concerns as to what to do.

My amount claimed involves new and complex case law regarding bringing forward unused holidays to the next leave year which has been discussed in several cases in the past year and also overturning the 3 month break between holidays as set out in the Locke v British Gas case. My knowledge of default judgements is zero and my concern is that if one is made and I am not present to present an argument, I may end up with significantly less than the amount paid to me, if the judge is not willing to make a judgement in my favour on these points.

My concern is that if I go ahead, I could end up with less than I have now and possibly no action being taken against the respondent. This is not such a concern as at least an amount would be confirmed as legally mine, more so if the Tribunal was to take action against the respondent and if this action was to be made public. On the other hand, if I don't proceed, the money could still be removed from my account, yes it could be more difficult to do so at this stage but it could still be done.

I would be very grateful if anyone could offer advice as to what I should do. It would be particularly helpful if anyone with knowledge of default judgements could comment as that aspect of this is what is key to me making a decision. Sorry for the long post, I hope what I have written is clear enough to follow.

[mariefab]

Re: Holiday Pay Employment Tribunal Case Settlement Query. Urgent!

If you are concerned that after the Judge makes the default judgement the Respondent may try to overturn it, you have no need.
The process that the Judge has followed....
At first sending an order instead of going straight to a default judgement,
sending reminders,
then a final reminder.
...means that when a default judgement is issued it will be final. The Respondent will not be able to re-open the case or overturn the judgement.

In many cases there are two separate hearings. One to establish liability and one to decide the appropriate remedy.
But, in a simple or undefended case a Judge will often deal will both together. That's what the Judge proposes to do in your case.

So, you need to write down exactly what compensation you want to be awarded, set out why you believe you are entitled to it and send it to the Judge. (When referring to case law it's helpful to give the relevant paragraph numbers as well as the case name and number.)
The Judge will then make his decision based on the papers. You don't need to be there.