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    • Jackie26
    • By Jackie26 15th May 19, 7:43 AM
    • 6Posts
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    Jackie26
    Unfair dismissal advice
    • #1
    • 15th May 19, 7:43 AM
    Unfair dismissal advice 15th May 19 at 7:43 AM
    Hi everyone, not sure if anyone can help with this. Will a employment tribunal take into account the background of a SOSR in a case. I worked for my husband for just over two years, he started an affair with an employee, three weeks after leaving the marital home they moved in together. I have claimed unfair dismissal as when he was served divorce papers he stopped paying my wages and sent an email about bullying and harassment in the workplace. He claims I was never an employee, but if the tribunal deems I was and finds my dismissal was unfair , he has then brought SOSR breakdown of employer/employee relationship. My question is will the tribunal take into account that the reason the relationship between employer and employee broke down was because of there actions. None of the companies procedures for dismissal have been followed. I have a strong case for unfair dismissal then he brought this into play. Any advice would be greatly appreciated as I have no legal representation, there was no union in the work place and I can not afford a solicitor. Many thanks
Page 2
    • Masomnia
    • By Masomnia 16th May 19, 6:27 PM
    • 17,862 Posts
    • 39,804 Thanks
    Masomnia
    You claim you have 'a strong case'. Clearly there is only limited information available, but from what you've said, it doesn't sound that way at all. What are you hoping to achieve? Do you have any idea what you're getting yourself into in terms of misery and public humiliation (tribunal hearings are open to the public, and a nosey local reporter on a quiet day...), especially if you can't afford any professional help?

    The desire for revenge in this situation must be huge, but the downside for you is what really counts. Don't forget that any settlement would come out of company funds, not your husband's pocket, which would diminish the amount available for distribution as part of the divorce settlement.

    Is it really worth it for the distress it will cause you for what is likely to be no more than a nominal award, if that? And how would you feel if the case is dismissed, as it may well be?
    Originally posted by Marcon
    A claim for unpaid wages, notice, and holiday where applicable could be made through a small claims court and wouldn't require OP to go to tribunal. I'd speak to CAB about this.

    An unfair dismissal claim would have to go through a tribunal though yes.
    I could see that, if not actually disgruntled, he was far from being gruntled. - P.G. Wodehouse
    • Marcon
    • By Marcon 16th May 19, 6:59 PM
    • 955 Posts
    • 736 Thanks
    Marcon
    A claim for unpaid wages, notice, and holiday where applicable could be made through a small claims court and wouldn't require OP to go to tribunal. I'd speak to CAB about this.

    An unfair dismissal claim would have to go through a tribunal though yes.
    Originally posted by Masomnia
    There's a charge for using the money claim online service. If that's all OP decides to claim, then the tribunal route is free and much less problematic.
    • jobbingmusician
    • By jobbingmusician 16th May 19, 8:54 PM
    • 19,546 Posts
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    jobbingmusician
    Free, yes. Less problematic? Not so sure about this - I've used both methods of redress in the past, and know that MCOL can be far less stressful (to be fair, the defendant didn't bother to defend in my case, and I won by default). A claim for unpaid wages, notice, and holiday should be fairly clear cut, and MCOL would probably involve less face to face stressy stuff......
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    • Jackie26
    • By Jackie26 17th May 19, 7:28 PM
    • 6 Posts
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    Jackie26
    Received confirmation yesterday of a preliminary hearing to decide whether i was an employee, the respondent (husband) law firm has today sent an application to amend his original claim since they have reviewed my evidence documentation. He originally claimed i had never been an employee or done any work for the respondent, he is now claiming that i was doing occasional favours as his wife and shareholder for remuneration. There are quite a lot of amendments and also there is extra paragraphs now, he is stating new evidence has been received. It pretty much contradicts what he said in his original response. Any ideas on going forward, obviously i know i need to put a case forward for it not to be changed but not sure how??? I would appreciate any help.
    • Masomnia
    • By Masomnia 17th May 19, 8:12 PM
    • 17,862 Posts
    • 39,804 Thanks
    Masomnia
    So it's a question of whether you fall under the category of 'worker' or 'employee'. Basically you have to be an employee to bring a claim of unfair dismissal, which is why they are having the preliminary hearing to determine where you fall.

    The main difference is what is known in the trade as 'mutuality of obligation', ie did the company have to provide you with work, and did you have to perform the work? So did you have set hours that you had to do? Did they direct when, how, where etc you worked, what you worked on?

    If it was all very flexible you were probably a worker and thus unable to claim unfair dismissal, if it was more structured and the company had control over what you did and you had set hours then more likely an employee. It's often a grey area.
    I could see that, if not actually disgruntled, he was far from being gruntled. - P.G. Wodehouse
    • Jackie26
    • By Jackie26 17th May 19, 8:32 PM
    • 6 Posts
    • 0 Thanks
    Jackie26
    I was paid a salary and did regular duties every week, i was given a company bank card, phone and fuel card to enable me to complete the duties. They are now saying that i was paid remuneration for favours and not a wage. I have wage slips and p60's also a uniform. I was paid my last wage in Nov 2018 but HMRC said they did not apply online for my P45 until March 2019. How do I respond to the application for the amendments to the tribunal please
    • robatwork
    • By robatwork 18th May 19, 1:52 PM
    • 5,113 Posts
    • 5,874 Thanks
    robatwork
    https://worksmart.org.uk/work-rights/pay-and-contracts/contract-terminology/am-i-worker-employee-or-self-employed

    Pretty grey in your case.

    BUT - do you have regular monthly (or weekly) payslips and bank details where you can show the same or v similar deposits from the employer on a regular basis? That would swing it to employee.

    But aren't you stressed enough with the divorce? You should probably get that out of the way first.
    • Xbigman
    • By Xbigman 18th May 19, 4:15 PM
    • 3,229 Posts
    • 1,432 Thanks
    Xbigman
    Jackie

    Honestly, you need to drop this. You are getting divorced. The money involved in the divorce dwarfs this minor pay/dismissal dispute.
    You might get a few grand, and yet your husband is willing to spend similar sums of money on a solicitor fighting you. That says it all really.
    The last thing you want is for all this to get dragged into the divorce court and put your divorce costs up. Meanwhile you say you have a claim on half the company. Then half the money you might win is yours anyway, and half the costs of his defending the action is yours too. It's a lose/lose situation.
    Save your emotional energy for the divorce. You can bet your life he will be claiming the company is all his. Being the wife who did him favours and helped run the company might be a better position than just being an employee when the divorce judge decides who gets what.
    You need serious legal advice on all of this.



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