Employment Tribunal

[McTemp]

Dithered about whether this should be in here or in employment issues... apologies if I've gone for the wrong one.

DH's old company had a cash flow problem and didn't pay him (and his colleagues) for four weeks work, and then told all staff they had no money to pay them if they continued to work for them. It's a construction industry job, so they all left and found alternative work after a few weeks of being unemployed. They were promised by old company that as soon as they got paid from the people 'above' them in the chain, they would pay their ex-employees. After about 2months when nothing came despite many broken promises, all unpaid staff made a joint an employment tribunal claim.

Company have now been paid, and responded to the claim. They have made a settlement offer of about 70% of the amount DH is owed, paid in intallments which will take about 6months. Some of the men have accepted this settlement offer immediately (all satff made offer of approf 70% in installments) as they need the money now.

I don't want DH to accept 70% of the money, as it means about an £800 loss for us - massive. I would prefer to go to tribunal. We have incurred so many 'late' payment fines etc due to companys non payment, and I dont want to accept less at this stage. If it goes to tribunal, fine. Company has no money problems now and is trading again - they made the lower offer as I'm assuming they have incurred solicitors fees in dealing with this etc.

If we go to tribunal, can the judge consider the fines we have incurred, and the time DH was out of work due to this? Or would the Judge just be able to award unpaid monies only? I really just want to know what to reply to the company as an 'acceptable' offer that we would be willing to consider, and don't know what sort of things we can include in this.

If it goes to tribunal we will probably seek legal advice, although we can't afford it, but don't want to take that step if it's not necessary.

Dithered about whether this should be in here or in employment issues... apologies if I've gone for the wrong one.

Don't worry, at least you haven't cross posted

First of all, was your DH paid as an employee or as a subcontractor? If he was paid as an employee you can get free advice from ACAS - their helpline is open Saturday mornings. Witholding money from wages due is unlawful, and you shouldn't have to pay any legal fees to persue this - ACAS will help you. Claiming late payment fees and other consequential costs is not quite as clear cut (the right to be paid the whole of your wages when they fall due is written down in law, but the losses you have suffered as a consequence can only be recovered by relying on your DH's contract).

If he was paid as a subcontractor it is much more complicated.

Don't whatever you do communicate with the company until you have had specific, personal advice from ACAS.

HOLD ON, I've just reread your post. You say there is currently a claim lodged with the employment tribunal? Who is representing you all? Talk to them and ask them what they suggest you do. If they suggest you should take the 70%, talk to ACAS.

Oops, I meant to say that it may be that the lawyer persuing the current joint claim has a cunning plan to accept the 70% and then persue them for the rest later, you do need to talk to the lawyer to find out if this is the case and if so what is the plan.

We have had contact from ACAS -they were the ones who have contacted us with the settlement offer, but they only seem to be acting as mediators and have not given advice, even when asked. No-one is representing us - we are representing ourselves.

Its all so confusing! Do you think we should seek representation then?

ACAS are only there as mediators, they cannot and will not give you advice, they are just involved to assist with the settlement.
DH and I recently had a claim in the ET and we were approached by ACAS with regards to the settlement put forward by his former employers and they simply assisted with the agreement.

If you really are not happy accepting the 70% then it might be in your best interests to seek independant legal advice. If you post in employment, there is a very helpful poster there called flowery who knows her stuff

Ah, I didn't realise things had got that far. The ACAS mediator involved in your case cannot offer you advice as you have discovered. But ACAS will advise an employee (or for that matter an employer) on their employment rights, call the helpline. If you don't want to do that, go to a Citizens Advice Bureau. Or get a lawyer.

And the people that have accepted 70% as full and final settlement should get some advice too because AFAIK they can go back for the remaining 30% as you cannot sign away your right to receive wages in this way.

Again all this is dependent on you having been treated as employees by the company, if they treated you as subcontractors your position is nowhere near as strong. Are you clear about this?

Meeting with Citizens Advice tomorrow, which should hopefully clear things up for me, but thanks so much for all your help.

MrA - TBH, no, I'm not entirely sure whether they would be classed as employees or subcontractors. They used the companys tools, the companies vans, the company paid their tax (although the workers pay own NI contributions only), and ACAS initially advised that this meant a tribunal would view them as 'employed' by that company, but hopefully CAB can clear that up for us tomorrow.

Have you posted about this issue before?

They are clearly being treated as subcontractors, not employees. If they were being treated as employees it would be simple - not paying the whole amount of wages due to an employee is an unlawful deduction and if it went to an Employment Tribunal I'll bet you would be awarded 100% of the missing money plus reasonable costs in about 10 minutes.

But in this case you would first have to prove that you were in fact employees. This is not easy to prove (there are many things that need to be taken into account, and court decisions have not been consistent in prioritising these) - it would likely take days of court time, protracted legal discussions and would not be guaranteed success.

The alternative is to persue them for the ordinary debt as subcontractors which is presumably what you are doing. If you had a lawyer I bet they could negotiate 100% of what you are owed pretty quick. They would also be able to make sure that any settlement agreement you signed left it open for you to go back and claim for unfair dismissal (for which you would need to prove employment status) too.

The CAB may well refuse to offer help - a subcontract debt is a business debt and that is outside the remit of the CAB.

Get a lawyer.

Hmmmm, seems strange to me that ACAS are mediating in this if employment status is not common ground - you need a lawyer to go through all of the papers with a fine tooth comb to see exactly what the company has admitted and what the significance of this is.