Tribunal claim withdrawal but not dismissed

Anon78

Yeah I think that is what's going to happen. I appreciate your help with this, thank you.

Crazy_Jamie

sangie595 wrote: »

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.

The national minimum wage is considered to be an implied term in contracts of employment. Cases brought on the basis that an employee was not paid the minimum wage are therefore legally actions in breach of contract, for which the County Court does have jurisdiction. The time limit to bring such claims in the County Court is six years, hence why in this case the County Court is rightly considered to be an viable alternative avenue to bring the claim given that the Employment Tribunal claim was out of time. The reason why the solicitor sought withdrawal without dismissal is because dismissal constitutes a determination, so therefore bringing a further claim in the County Court would be an abuse of process as the issue would already have legally been determined. Withdrawing the claim without dismissal is not a determination, so the claim can then be brought in the County Court.

Whilst I appreciate the thread has come a long way since you posted this, you may wish to amend any advice that you have given that highlights potential 'jurisdictional' issues with the County Court, because there would be no such issues here.

getmore4less

It is not surprising that employees have been picked of to accept an offer the union has messed up big time.

What did HMRC have to say as they are the NMW police.

Anon78

I haven't contacted HMCR. Should I? Actually I think I spoke to them ages ago asking advice but I never gave any specific details.