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  • FIRST POST
    • Skanbuzz
    • By Skanbuzz 11th Jan 19, 5:32 PM
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    Skanbuzz
    What to do? settle or go legal
    • #1
    • 11th Jan 19, 5:32 PM
    What to do? settle or go legal 11th Jan 19 at 5:32 PM
    Basically Aman was made redundant on 26/11/18
    Company A (about 10 employee) was willing to give (A)redundancy pay(according to statutory calculation), (B)Notice pay (for the 12 weeks notice as specified in contract x week's wage)& (C)sum for accrued leave not taken (days convert to week's x week's wage).
    Aman discovered on Company House that the Company A's directors had filed cessation their position & new members registered(members of Company B) back in May 18 but both board members never consulted the employees. In fact Aman never know the exact date Company B took over they had been introducing new email address, internal time logging system & electronic filling system in Company B system throughout May to Sept. On 15/12/18, Company A officially changed name to Company B. Aman also recently discovered that the company calculation of Aman week's wage wrongly, it should be more than just basic salary divide by 52 weeks. Aman also discovered that although his contract have a clause for employer to give notice but there was no clause for pay in lieu of notice.
    Although Company A had paid into Aman account, in the payslip, the amount (A) is not taxed & paid PILON(D) & (C). and (D) & (C) are taxed.
    Aman believed that:
    1) the company had under paid Aman for (B) & (C)
    2) the Employer A & B had not followed TUPE regulations
    3) The Employer had breach Aman's contract by paying him PILON(D) which should not have happened.
    4) the employer had dismissed Aman unfairly
    Questions:
    item (1) above can be corrected if recalculate properly
    item (2) what is the redressed? can Aman be compensated financially?
    item (3) is a legal situation that the employer Breach in Contract, what is the redress? since employer had already banked [aid PILON and Aman taxed. If it is a breach in contract then the employer can only settle by financial compensation and compensation should not be taxed. - is that right?
    item (4) If the employer had dismissed Aman improperly (due to discrimination, unfair & constructed dismissal) - what is the redress?

    Which defaults above is the priority to be addressed and how Aman can maximise his gain ( in position as well as financial) because at the moment Aman lost out because he is been taxed for PILON which should not be PILON and ther are two other items to be added to the confusion.
    Aman needs help just to be clear how he should approach to resolve this situation, accounting, and against the employer. Should Aman go legal or settle? What would be a fair settlement? If go legal what would Aman had to pay for help?
Page 1
    • Crazy Jamie
    • By Crazy Jamie 11th Jan 19, 6:27 PM
    • 2,160 Posts
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    Crazy Jamie
    • #2
    • 11th Jan 19, 6:27 PM
    • #2
    • 11th Jan 19, 6:27 PM
    There are a number of legal issues here that cannot be resolved from the detail that has been given in that post. TUPE is, in particular, a complicated area of law that will require input from a specialist who has the full picture.

    Your redress for all of this is through the Employment Tribunal. Be aware that there are strict time limits that apply to ET claims, and you need to go through the process of ACAS Early Conciliation before you can issue a claim in the ET. You need to start EC within three months of dismissal for most of these claims (assuming the discriminatory act that you're referring to is the dismissal), which gives you about six weeks to take advice and start the claims process. In the first instance see if you have relevant legal cover on, for example, a home insurance policy. If you don't, find a solicitor who specialises in employment law who you can have an initial meeting with and who can hopefully advise you on your options and next steps. If you cannot find or afford a solicitor, there are a number of organisations that provide free legal advice such as the CAB. But notwithstanding the knowledge and experience that a lot of members on this forum do have, this is definitely not one where you should be getting help to any serious degree from strangers on the internet.
    "MIND IF I USE YOUR PHONE? IF WORD GETS OUT THAT
    I'M MISSING FIVE HUNDRED GIRLS WILL KILL THEMSELVES."
    • Skanbuzz
    • By Skanbuzz 13th Jan 19, 1:04 PM
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    Skanbuzz
    • #3
    • 13th Jan 19, 1:04 PM
    • #3
    • 13th Jan 19, 1:04 PM
    Thank you Crazy Jamie, Most appreciated
    Anyone have any comments on:
    1) the company had under paid Aman for (B) & (C)?

    item (3) is a legal situation that the employer Breach in Contract, what is the redress? since employer had already banked paid PILON and Aman taxed. If it is a breach in contract then the employer can only settle by financial compensation and compensation should not be taxed. - is that right?

    Thanks
    • nicechap
    • By nicechap 13th Jan 19, 3:56 PM
    • 1,523 Posts
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    nicechap
    • #4
    • 13th Jan 19, 3:56 PM
    • #4
    • 13th Jan 19, 3:56 PM
    Very similar question & answers here and probably other threads too.

    https://forums.moneysavingexpert.com/showthread.php?t=5941430
    “Never argue with an idiot. They will only bring you down to their level and beat you with experience.” - George Carlin
    • p00hsticks
    • By p00hsticks 14th Jan 19, 12:20 AM
    • 6,603 Posts
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    p00hsticks
    • #5
    • 14th Jan 19, 12:20 AM
    • #5
    • 14th Jan 19, 12:20 AM
    2) the Employer A & B had not followed TUPE regulations?
    Originally posted by Skanbuzz
    I don't think TUPE necessarily applies in these circumstances - it depends on exactly how company A transformed into company B, but if it was achieved by company B simply buying the shares of company A, employees of company A automatically become employees of company B, there's no tranfer of employment.

    item (2) what is the redressed? can Aman be compensated financially?
    Originally posted by Skanbuzz

    Even if TUPE was applicable, its purpose is to ensure that employees terms and conditions are preserved at the point of transfer, so I can't see that there is any financial loss and therefore need for compensation .
    • getmore4less
    • By getmore4less 16th Jan 19, 5:38 AM
    • 34,139 Posts
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    getmore4less
    • #6
    • 16th Jan 19, 5:38 AM
    • #6
    • 16th Jan 19, 5:38 AM
    3) The Employer had breach Aman's contract by paying him PILON(D) which should not have happened.
    item (3) is a legal situation that the employer Breach in Contract, what is the redress? since employer had already banked [aid PILON and Aman taxed. If it is a breach in contract then the employer can only settle by financial compensation and compensation should not be taxed. - is that right?
    PILON is the compensation for loss of notice and is taxed and NI,

    The law got changed(6 April 2018?) to make all PILON taxable.
    Last edited by getmore4less; 16-01-2019 at 5:43 AM.
    • getmore4less
    • By getmore4less 16th Jan 19, 5:41 AM
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    getmore4less
    • #7
    • 16th Jan 19, 5:41 AM
    • #7
    • 16th Jan 19, 5:41 AM
    if the redundancy did not hit the cap(£509pw) then A should be include in any claim for underpayment based on a "weeks pay"
    • getmore4less
    • By getmore4less 16th Jan 19, 5:49 AM
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    getmore4less
    • #8
    • 16th Jan 19, 5:49 AM
    • #8
    • 16th Jan 19, 5:49 AM
    4) the employer had dismissed Aman unfairly
    why?

    item (4) If the employer had dismissed Aman improperly (due to discrimination, unfair & constructed dismissal) - what is the redress?
    explain?
    • Skanbuzz
    • By Skanbuzz 16th Jan 19, 9:22 AM
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    Skanbuzz
    • #9
    • 16th Jan 19, 9:22 AM
    • #9
    • 16th Jan 19, 9:22 AM
    I don't think TUPE necessarily applies in these circumstances - it depends on exactly how company A transformed into company B, but if it was achieved by company B simply buying the shares of company A, employees of company A automatically become employees of company B, there's no tranfer of employment.
    Quote from ACAS:
    Business transfers
    This is where a business or part of a business moves from one employer to another. This can include mergers where 2 companies close and combine to form a new one.

    The identity of the employer must change, to be protected under TUPE during a business transfer.

    If company A directors have all announce that they are "cessation as a person of significant interest. and
    Company B staff are now directors in company A & one of them is a person of significant interest in the company A
    and
    at the end of December 2018, company A change its name to company B

    Would you consider company B is the NEW Employer and Company A is the Old Employer?

    Also if Company B website stated that they acquired Company A

    Is that a New Employer now?

    If there is a change of employer, then
    Employers with less than 10 employees can inform and consult directly with employees if there aren’t any appropriate representatives and the transfer will take place on 31 July 2014 or later.

    did the employers breach the TUPE for not consulting the employee and now Aman is made redundant?
    • p00hsticks
    • By p00hsticks 16th Jan 19, 12:50 PM
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    p00hsticks
    Also if Company B website stated that they acquired Company A

    Is that a New Employer now?
    Originally posted by Skanbuzz
    I don't believe so, assuming that the acquisition was by company B buying the shares in company A.


    I'm not an employment law expert but in my career I've undergone TUPE twice (where part of the company I've worked for has been outsourced to another company), so I'm fairly faimilar with what is and isn't allowed under TUPE.

    I was also in a position about ten years ago where the company I worked for was acquired in its entirety by another company (by them buying all the shares in the company), and this definitely didn't fall under TUPE, even though the name of the smaller company disappeared and we were then effectively working for the larger company.

    I suspect the latter is the same as what happened to Aman.

    This may be of interest, although bear in mind it is over ten years old, and the rules may have changeds since

    https://www.personneltoday.com/hr/tupe-and-share-sale-takeovers/
    Last edited by p00hsticks; 16-01-2019 at 12:52 PM.
    • Skanbuzz
    • By Skanbuzz 16th Jan 19, 12:57 PM
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    Skanbuzz
    Hi p00hsticks,

    Thanks

    yes, it is difficult for us and Aman to know whether Aman had been switched to the New employer.
    it is very silly that the Company act do not define this clearly and let all these employer get away with it. If B bought all the shares or majority of the shares, surely that is a take over. How else do you define take over? I think there are insufficient protection for the employee
    • p00hsticks
    • By p00hsticks 16th Jan 19, 2:30 PM
    • 6,603 Posts
    • 7,151 Thanks
    p00hsticks
    it is very silly that the Company act do not define this clearly and let all these employer get away with it.
    Originally posted by Skanbuzz

    Get away with what though ?

    Either you (or Aman) continue as an employee of company A (which now belongs to company B) under the same employment contract as you always have been, or your transfer over to company B via TUPE, which ensures that your T&Cs remain the same at the point of transfer - as I see it, there is the same (lack of) impact on the employee either way.


    Of ocurse, if there is then a company restructure for technical, economic or organisational reasons the emplyee may find they are facing redundancy or changes to those T&Cs, but this could happen whether there is a takeover or not.
    Last edited by p00hsticks; 16-01-2019 at 2:33 PM.
    • getmore4less
    • By getmore4less 16th Jan 19, 3:12 PM
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    getmore4less
    What you think will change if you get Tupe to apply.

    Focus on the redundancy
    • Skanbuzz
    • By Skanbuzz 17th Jan 19, 11:20 AM
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    Skanbuzz
    Would Aman get compensation now that he is made redundant because the employer(old or new) breach and did not consulted Aman first.
    • Skanbuzz
    • By Skanbuzz 17th Jan 19, 11:25 AM
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    Skanbuzz
    item (3) is a legal situation that the employer Breach in Contract, what is the redress? since employer had already banked [aid PILON and Aman taxed. If it is a breach in contract then the employer can only settle by financial compensation and compensation should not be taxed. - is that right?
    If employer did not carry out TUPE consultation and now Breach of Contract, how is this affected Aman or will Aman be compensated under what? unfair dismissal?
    • getmore4less
    • By getmore4less 17th Jan 19, 2:02 PM
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    getmore4less
    I did not pick up on this before but to clarify a couple of points.

    Quote from ACAS:
    Business transfers
    This is where a business or part of a business moves from one employer to another. This can include mergers where 2 companies close and combine to form a new one.

    The identity of the employer must change, to be protected under TUPE during a business transfer.

    If company A directors have all announce that they are "cessation as a person of significant interest. and
    Company B staff are now directors in company A & one of them is a person of significant interest in the company A
    and
    at the end of December 2018, company A change its name to company B

    If company A still exists as a legal entity just with a new name then there has been no change of employer.

    Would you consider company B is the NEW Employer and Company A is the Old Employer?

    Also if Company B website stated that they acquired Company A

    Is that a New Employer now?

    If there is a change of employer, then



    did the employers breach the TUPE for not consulting the employee and now Aman is made redundant?
    Originally posted by Skanbuzz
    You need to go back to the legal docs and see if there has been any change of entity that employs the people.

    It is quite possible if the redundancy(26/11/18) happened before the legal entity that was the employer changed(maybe end of December 2018)

    What has been filed at companies house?
    • Skanbuzz
    • By Skanbuzz 17th Jan 19, 3:18 PM
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    Skanbuzz
    In company House in December they filed: "Certificate of incorporation of change on name", The registrar of company of England & Wales hereby certifies under the Company Act 2006 Company A a company incorporated as private limited by shares, having its registered office in England and Wales has changed its name to Company B on... date

    Not to forget that
    the company A directors had cessation of significant control back in May
    and one of Company B person (already appointed as a director into Company A in May also filed Notification that he is a person of signification control
    I do not quite understand your comments
    You need to go back to the legal docs and see if there has been any change of entity that employs the people.

    It is quite possible if the redundancy(26/11/18) happened before the legal entity that was the employer changed(maybe end of December 2018)
    Hope the above helps
    • getmore4less
    • By getmore4less 17th Jan 19, 4:04 PM
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    getmore4less
    Forget the directors/shareholders they are not the employer.

    Looks to me they have just changed the name, the legal entity is still the same company.
    • Skanbuzz
    • By Skanbuzz 17th Jan 19, 5:40 PM
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    Skanbuzz
    How do you determine that there is a New Employer?
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