Tribunal claim withdrawal but not dismissed

Anon78

Hi, I was wondering if anyone could help me with this. I was in the process of taking my employer to a tribunal hearing in regards to money being owed to me.

Yesterday I had a letter stating that we are out of time and it is likely the ET will dismiss the case.

The solicitor now wants to withdraw the claim from the ET and ask them not to dismiss it so we can take it to a county court instead.

Has anyone ever had experience with a similar matter and what are the chances of the ET allowing us to withdraw without it being dismissed?

Thanks guys.

jobbingmusician

I think we need more information. Why on earth are you out of time? Do you have a case against your solicitor?

Anon78

The matter is to do with the employer paying minimum wage overnight which he didn't until last September. September was the first month he started paying it.

So then we had three months from that date to take it to the tribunal. The union and the solicitor knew this, obviously.

We applied for early conciliation in October due to negotiations, but Acas have said even with the maximum time that early conciliation allows we still would have been out of time.

The union applied for it to go the ET in January. I had concerns back then about the time limit and another employee I work with heard my employee talking about stalling the case so it runs out of time.

I phoned the solicitor with these concerns and he assured me that we're still in the time limit.

So now I had the letter yesterday saying that we're out of time and he is hoping we can withdraw the case from the ET without it being dismissed.

I hope this makes sense.

sangie595

I am astonished that the claim wasn't made until January - it must have been very obvious that the claim was out of time by that point. How does a solicitor miss that? Submitting a claim automatically triggers ACAS involvement now, and making the claim immediately is always the way we would go. To be honest I don't think anyone could answer your question. The ET will do what they wish to do, and they can't be predicted. But even if you withdraw, I am slightly concerned by the solicitors advice, because it is not at all certain that the county court would accept jurisdiction. Enforcement of the minimum wage is the jurisdiction of an employment tribunal, not the county court. Any dispute at all about this being a matter of employment law and not simply a debt, and the case would be doomed.

Anon78

Thanks for the reply, I appreciate it.

So any idea on what I should do next?

I can't believe they let it run out of time to be honest. At first I thought it was my mistake on my part by giving a wrong date or something, but I didn't, I did everything that I could have done properly.

sangie595

Not a clue I am afraid. We would never let something get away from us like this, so I wouldn't know what to do. I think prayer may be the only option - and I do really mean that. It seems to be a monumental screw up. In our union, it would trigger an internal inquiry into the officer / solicitor to find out who is at fault - and I can't recall the last time one of those happened for screwing up basic law! It's easy to make an error of opinion - the law is based on the fact that there are multiple opinions possible. But to err on a filing deadline so simple is stupendously idiotic.

Assuming the solicitor is acting for the union - I'd be asking the union what they are doing to fix this.

Anon78

OK thank you for your reply, once again I appreciate it.

Anon78

OK I will do that, I'll phone or email the union on Monday.

Anon78

I've emailed the union so I'll wait and see what they have to say.

Mersey_2

It may be professional negligence (if a solicitor misses a Court/Tribunal deadline, thus causing their client loss).


Best seeking advice from a firm of solicitors who undertake professional negligence.


Sadly, this is increasingly common: but you should not lose out and the solicitors have to be insured for this eventuality. The firm will also probably recommend you report the solicitor to the Law Society or the Legal Ombudsman.

Anon78

Thanks, maybe that is an option as well. I'm just not sure on what to do next.