Pls Help! re:Tribunal- employmen status and unpaid commission

insider293

Hi,

I would be grateful if someone can give me a better insight into this matter.
I will try to simplify it.although its a little complex:
I have a Full merits hearing set for next Thursday.
The respondent's team tried to strike out both claims (unfair dismissal and unlawful deduction of wages) due to lack of continuous service (I was technically self-employed for the first 7 months although a middle manager working full time) and out of time claim - no time limit for payment of commission had been specified on the contract..

They turned up to the Preliminary Hearing late and unprepared, so the judge decided to proceed to a full hearing which would deal with the preliminary issues first.

I have irrefutable evidence that my commission claim is justified. (due to a last minute witness whose participation in effect forced disclosure).

The other side have offered to settle on a figure based on this commission..but not the Unfair Dismissal.. My original ET1 claim and subsequent settlement proposal amounts to about 1/5 of the total schedule of loss...so I think its pretty fair.

Given that the evidence clearly shows that at least the wages part of my claim was justified, would the other side be able to claim costs in any way at all? Bearing in mind that my old boss pays a monthly fee for his solicitor's services, so in fact is not incurring additional costs?

Also, the original bundle included meeting notes that had been altered by the Respondent... upon hearing that the note-taker may be appearing as a witness, they resubmitted the notes in their correct version...both sets are in the bundle:further indisputable evidence of dishonesty...

The danger is, that I may not win on the preliminary issues, despite the evidence confirming my claims are justified..

Whats the worse that could happen to me?! If the preliminary issues are borderline, would the actual facts regarding the veracity of the claim and the dishonesty of the Respondent have an impact on the panel ruling in my favour (on the preliminary issues)?

Many thanks!

uknick

With regard to what costs you might have to pay the respondent. Costs are only awarded in a very few cases. They are usually awarded where a person has proceeded to tribunal against legal advice with regard to chances of success.

If awarded, the costs will be at the judge's discretion based upon a costs application. Therefore, the award will generally be what a judge thinks is fair based on their experience.

Google the Alan Sugar and Apprentice ET tribunal if you are worried. He won the case and subsequently sued the losing side for costs of about £50k. Despite the original ET judge saying the case should never have been brought, Sugar's cost application was rejected.

Not quite sure what you are saying about the offer, do you think it's fair, or do you think your claim is fair?

With regard to your claim, be very realistic how much discretionary compensation a judge will award if you win. Have you had any legal advice as to what may be awarded?

You say you have two parts to your claim, unfair dismissal and loss of commission. With regard to dismissal claim, how long did you work for them? Were you actually an employee with an employment contract? Without wishing to state the obvious, the first thing the judge will decide if this was the case. If you did have a contract I assume this is in your bundle of evidence.

The other side says the commission is out of time. Did you submit the claim within 3 months of becoming aware you were not going to be paid? If not, you are on thin ice.

To answer your last question, "what could happen to me?", worst case is judge throws case out and, if he thinks you have been wasting your ex-employer's money may well find for costs against you.

Also, my bitter experience is judges don't like to think people lie to them. So, don't rely too much on this swaying his decision. He will look at it very much in black and white, which is very frustrating. Also be aware that if this goes to tribunal your ex-employer may well do what they can to paint you as a trouble maker and that you got what you deserved.

Good luck on Thursday.

insider293

Many thanks for your response.

Here are some answers to your questions:

With the settlement, I made the mistake of making my bottom line clear from the outset. I realise the Schedule of Loss is likely to be qualified by an Judge.

In terms of my official contract, it started in May 2012, so although it lasted over a year, it was after the April 6th change in law. However, I started working for the company in September 2011 and had set hours, set weekly wages..and basically tick every other box in the 'employee' test. The only difference being that I submitted invoices and was self-employed as far as HMRC were concerned.
The company did not give me any form of contract..although I had an important Middle Management role..and was even sent on a business trip abroad.
I understand that there is a thin line between being a worker and an employee...Despite invoices and self-employed status, is it possible for a Tribunal to find that I should have been an employee..and hence rule that I do have the continuity of service to claim UD?

The issue with the commission is complicated as there was never an official due date on the contract-the ambiguity of which, was the source of the problem. Part of it was paid 1 year after the relevant work was done, but confirmation of each 'sale' could take up to 6 months, so it would have been impossible to set a specific deadline.

The other side are claiming that once it was finally paid, that was my opportunity to make a claim for any missing amounts. However, following this, I have correspondence from them promising to look into it..and my assertion is that due to the lack of a deadline on the contract, it was legally possible for them to include it in my final pay.

I now have a document that shows my claim for the missing amount is correct, so if the out of time matter is resolved, it will be a formality.

Many thanks again!

uknick

Wrongful dismissal:
I'm not a lawyer, and please don't in any way take this the wrong way, but it does seem like you want to have your cake and eat it.

If, for tax purposes, the HMRC saw you as an a contractor, then I think the judge may think the same. If he were to think otherwise it would contradict the HMRC view, and may open a can of worms with regard to revised tax requirements. This is no doubt why the company say you were not employed for the required time. But, as I said I'm not a lawyer and don't know the nuances of what is considered continuous service.

Hopefully, a lawyer, or more experienced person will be along to advise further on this.

Commission:
The issue of commission should be simpler. From what you have said I think the 3 month clock should start from when they refused to pay the commission. Otherwise, how would you know there is a problem? If your evidence pack contains proof of the communication you refer to, I'd think you're on strong grounds here. One would hope the judge would take this into account.

Compensation for unfair dismissal:
I don't know how much your SOL was for, but I would ask that you think very carefully as to whether you should take the offer as it stands, if it cover all your commission that is due.

Don't forget if the judge rules you were wrongfully dismissed he will only award loss of earnings to the level he thinks fit. From this will be deducted Polkey and contributory factors, and any state benefits received as a result of being out of work.

Do you think any financial compensation will outweigh the stress of a full tribunal?

Sorry to be negative, but I think any lawyer would have advised you of the same when they told you what they thought your prospects of success were.

However, it is in my nature to be overly pessimistic.

insider293

Thanks for your response.
There is definitely an element of principle in my motivations. I do feel it would be in the public interest to expose my ex-boss, and perhaps make him understand that he cannot behave outside Employment law.

I am assuming that even if I were to lose on technical grounds, the undeniable fact that he tampered with documents would be a matter of public record.

However, I have to decide whether such benefits are worth the stress of a hearing and an additional week of my time.