I Won My Tribunal But They Won't Pay

[Hair Bear]

Update. Just had this email from the London EAT (a copy of their email to the other side):

 

"Dear Sir, I refer to the above matter and the Respondent's Answer in which he states that the Appellant has no standing in these proceedings. Please provide your comments in relation to that matter within 14 days of the date of this email. "

Is this standard procedure, that they email your response to the Appellant and then ask for their comments? Or are they asking for their comments only because of the dissolved aspect?

[smokejumper]

I don't get emails, but I have been asked to give my comments/thoughts, after which they held a cmd or phr ( whatever they call it) so be prepared to state your argument at that meeting. ie: why it should be struck out or upheld, they will be doing the same.

[Hair Bear]

Thanks, Smokejumper.

[smokejumper]

Hairbear,

 

I found the following while searching for my case and thought it may be some help to you.

 

 

The Question Of Employment Status – Employed or Self Employed?

 

The recent decision of the Employment Appeal Tribunal (EAT) in the case of Quashie v Stringfellows Restaurants Ltd. is an important one for employers as it deals with the issue of employment status, something that always seems to cause problems. The case itself concerned the status of a lapdancer: was she an employee or self-employed?

 

The EAT held that Ms Quashie was an employee which means her unfair dismissal claim against the nightclub will now be heard by the Tribunal and if unsuccessful in defending the claim, the nightclub will have to pay compensation to Ms Quashie.

 

Points to note:

 

On the face of it this may appear a surprising decision, especially as it is generally accepted in the industry that dancers are self-employed. The question of employment status however can be difficult to determine, and on further consideration, it is actually more surprising that Ms Quashie is the first dancer to bring a claim of this type.

 

In order to determine employment status, the first thing to look at is any contractual documents that exist. It cannot be stressed enough however that any label contained in those documents is only one factor to be taken into account. Just because a document states a person is self-employed does not necessarily mean they are. The Stringfellows case is a perfect illustration of this - Ms Quashie had signed an agreement that clearly stated she was self-employed.

 

In addition to any contractual documents that exist, a Tribunal will also look at how the relationship actually works in practice and in particular, at the following three core elements:

 

Personal Service - The contract must impose an obligation on an individual to provide work personally.

Mutuality of Obligation - Some legal obligation towards each other which is a continuing overriding arrangement. Put simply this relates to the wage/work bargain i.e. is the individual obliged to work and is the business obliged to pay the individual for that work on an on-going basis.

Control - There must be some form of control over the employee by the employer. i.e. the ultimate authority over the employee in the performance of their work resides in the employer.

 

If all three elements are present then employment status is established albeit that a Tribunal will also consider facts such as how the individual was paid, whether they provided their own equipment, whether they were subject to disciplinary or grievance procedures, whether they were paid for sick pay and holiday pay, whether they were provided with other benefits and whether they had a degree of financial risk or level of responsibility within the business

[becky2585]

The Quashie decision was actually overturned by the Court of Appeal, so is no longer good law. The principles relating to employment status remain the same, though.

[smokejumper]

Hairbear , sorry for including bad info.

 

I didn't research it, as it was not relevant to my case.

 

Found it and Just thought I would pass it on, as it might help, wasn't implying anything and OP should always do own research.

 

Have I given a bum steer, will keep stuff to myself unless I know for sure it is good info.

 

Sorry again, must stop trying to help without knowing what I'm talking about.

[Hair Bear]

becky2585: Thank you for contributing.

 

smokejumper: No apologies needed, quite the opposite. Your input was actually spot on because (a) it concluded with our getting legal knowledge that wouldn't have happened had you not posted. And (b) your facts were correct in that, as becky2585 said, the principles remain the same. So thanks, and don't feel you shouldn't post, as all posts ultimately lead to good information.

[Grotesque]

Yep. Good post.

[smokejumper]

Here's some more info, wish I could find what I'm looking for though ;-)

 

In the case of Halawi v WDFG UK ltd (t/a World Duty Free) and another the EAT has found that Ms Halawi did not have a contract of employment and therefore could not pursue an unfair dismissal and/or discrimination claim.

An individual must meet the definition of an employee or a worker under sections 230(1) and 230(3) Employment Rights Act 1996 (ERA) respectively to bring an unfair dismissal claim. There are similar definitions under sections 83 and 41 of the Equality Act 2010 (EqA) where an individual wishes to claim discrimination. If none of the definitions are met then the individual will be unable to pursue a claim in the tribunals or courts.

Ms Halawi worked as a beauty consultant by providing her services to Caroline South Associates (CSA). CSA provided management services to Shiseido, a cosmetics brand. Mrs Halawi worked at a World Duty Free (WDF) at Heathrow airport. She provided her services to CSA through Nohad Ltd, a company she had formed for this purpose. No contract existed between Mrs Halawi and WDF or CSA. Mrs Halawi could and often did provide a substitute to perform her role. She could refuse work but she would not get paid unless she worked. She was not entitled to holiday or sick pay.

Mrs Halawi was provided with a uniform to wear by Shiseido and therefore could be mistaken as an employee by the general public.

Following the withdrawal of Ms Halawi’s airside pass by WDF she claimed that she had been unfairly dismissed and discriminated against as she could no longer work at Heathrow. Before she could pursue her claims the tribunal was required to decide whether Ms Halawi met the definitions under the ERA and the EqA to give her employment rights.

At a preliminary hearing, the tribunal held that in the absence of a contract between Ms Halawi and WDF or CSA she could not be an employee, worker or a contract worker. The fact that Ms Halawi’s relationship was with Nohad Ltd and there was no mutuality of obligation or control meant that there was an absence of any of the typical employment-related criteria.

Ms Halawi appealed to the Employment Appeal Tribunal (EAT) specifically against the finding that she was not an employee under s83 of the EqA. The EAT dismissed the appeal. The EAT has held that the Tribunal took all of the relevant factors into account and had come to the right conclusion. However, unease was expressed by Langstaff J that a potential victim of discrimination may have been left without a remedy in law.

There are well recognised tests for establishing employment status which the tribunals will apply. If you are in doubt about your employees’ status come and talk to us. The label you give it might not be determinative. Many people will provide services as a self-employed consultant but forget that in doing so they might be giving up valuable employment rights. You cannot have your cake and eat it!

[Hair Bear]

UPDATE ** NEWS ** LATEST

 

Response from the London EAT.

 

They open by stating when the court case had been scheduled for (19th June) and go on to say that I provided evidence that the other side had been struck off, and that they had put this to the other side. This is the rest. All opinions welcome.

 

It appears that the directors of the company made an application for dissolution of the company whilst there was an outstanding judgment for money against the company and it may well be that the company did not notify the respondent of the application for dissolution. It is possible that the dissolution was obtained improperly. That is not for this court to decide. However, since the dissolution of the company, a director, Mr XXXX, has continued to act in the company’s name, as if the company is still extant; but it does not exist and therefore no one is entitled to conduct litigation on its behalf. Any residual property or rights are vested in the Crown.

 

Mr XXXX has been asked for his comments and acknowledges the dissolution of the company on the 13th November 2012 but replies that he does “not know whether this then automatically makes the company ineligible to progress with the appeal”. He ignores the point that the company no longer exists. He may continue with his state of ignorance and non-enquiry no longer. It is for him to show that the company is a legal entity entitled to conduct this litigation and that he is entitled to act on the company’s behalf. It is not open to the company or its directors to pick which aspects of the law should apply to its status, to seek the protection of dissolution but to maintain the privilege of acting in its company persona.

 

It is for Mr XXXX (or anyone else) to show that the company has the power to continue this litigation. It may well be that to do so the company would have to be restored to the register of companies and it is for the appellant to show that this has happened. I refer the appellant to the Companies Acts of 1985 and 2006. In any event the failure of the appellant to do so would not prevent any application by the respondent in this respect. It is open to the respondent to take any further steps under the relevant legislation.

 

I therefore intend to

 

1. stay this matter for 3 months
   
2. remove the appeal from the list and vacate the hearing of 19th June 2014
   
3. Issue an Unless order pursuant to Rule 26 that unless proof is provided that the appellant company is entitled to litigate or to nominate someone to litigate on its behalf in its name within 3 months from the date of the order that this appeal be dismissed
   
4. The issue of costs against Mr Montgomery is adjourned until the above matters are decided
   

[bACK TO ME: Can someone expand on the "Unless Order"? Thank you.]

[steampowered]

An unless order means that, unless something happens by a specified date, the specified result will happen automatically without the need for a further tribunal order. In this case his appeal will be dismissed unless he produces evidence that the company is entitled to litigate (i.e. restored to the register). The ball is really in his court on that.

[Hair Bear]

Thanks, Steampowered.

 

What's the likelihood of his placing his company back on the register, bearing in mind I might be awarded costs if he doesn't?

 

Also, if he doesn't go back on the register within three months, although that means that this appeal is redundant, can he make a fresh appeal if he later decides to restore his company? I ask this because I plan to take him down the Civil route (once these three months are up), and am wondering if this would force him into restoring his company.

[steampowered]

I haven't ever done this process myself, but my understanding is that a simple administrative restoration to the register is only available where the company has been struck-off by Companies House usually due to non-filing of annual returns and the like.

 

I seem to recall that in this case he applied for the strike-off in which case a court order would be needed to restore the company. This guy does not sound very legally minded and it doesn't sound like he is taking legal advice. I would be surprised if he manages to get a court order restoring this company to the register.

 

I think the most likely outcome is that he does not do so and the appeal gets dismissed as a result.If the appeal is dismissed, he cannot raise a new appeal. This is because you are not allowed to bring the same appeal twice and also because the new appeal would be completely out-of-time.

 

To be honest if you have decided to go down the civil route I would be tempted to get on with it rather than waiting the three months. Unless he has a formal 'stay of execution', which presumably he doesn't, there is no legal reason why you have to wait for an appeal to be decided before enforcing a judgment.

[Hair Bear]

Thanks again. Yes, he did go down the voluntary route. I know nothing of the complexities in getting a court order, but can't help feeling that, should I hit him with an immediate Civil suit, he would do his level best to get a court order for restoration. For arguments sake, let's say this is the case. If so, is there a way in which I can stop him from getting a court order?

[Pusillanimous]

Thanks again. Yes, he did go down the voluntary route. I know nothing of the complexities in getting a court order, but can't help feeling that, should I hit him with an immediate Civil suit, he would do his level best to get a court order for restoration. For arguments sake, let's say this is the case. If so, is there a way in which I can stop him from getting a court order?

 

Best do nothing for now. He will probably just walk away. Reinstate the firm: means he's liable for your compensation.

 

Sit back and await his out of court settlement offer.

[steampowered]

No, I don't think you could realistically stop him from getting the company restored to the register by court order if he goes down that route. However it is a bit more legally complicated than filling in an EAT appeal form, so will be more difficult for him to bluster through.

 

If he manages to restore the company to the register, it could make things easier for you when it comes to enforcement anyway as it opens more options.

[Hair Bear]

Thanks guys. Here's my dilemma: I can't help feeling that he will restore the company, but that that isn't good for me. Let me explain...

 

If he doesn't restore it, it looks as though I will be entitled to claim for expenses. So, for me, that's a win, albeit a paltry one. I can also perhaps take him down the civil route, which may mean a fairly sizeable win. He will have sussed all that. On the other hand, if he does restore it, although this means he's supposed to pay me some money, he will be banking on his being able to get the decision overturned via the appeal he has been granted (and, therefore, won't pay me a penny). He seems to believe that his argument is fairly solid and that the original judge erred in law, and since he decided to 'lawyer up', clearly he was all set to do whatever he felt necessary to win. Moreover, he will know that I can't really afford a barrister for the appeal, so will be banking on the old adage "having a barrister will checkmate having no barrister". This is why I suggested waiting until the three months is over before taking him down the civil route -- because hitting him with a civil action would definitely rouse him into restoring the company in an effort to win the case outright and see me off once and for all.

[steampowered]

Its a bit late for him to lawyer up to be honest. Legally he has created quite a mess and it will be expensive for him to pay someone to sort it out for him. It is generally quite difficult to win on appeal, especially about an issue such as whether you are self-employed which is often a factual issue the EAT is reluctant to reconsider.

 

Unless there is concern about him moving assets about yet further during the 3 months I guess its not a bad approach to wait it out.

[Pusillanimous]

Any update, hairbear?

[Hair Bear]

Thanks for enquiring, Pusillanimous.

 

No update, which is no surprise to me, as the 'baddies' have done everything in their power thus far to drag this out as long as humanly possibly. So there's no question in my mind that they won't respond to the EAT until the very last couple of days of the mammoth three months they were given (an outrageous amount of time, particularly in the light of my being given only ten days or so to write-up a full-length argument to their 40-point appeal). I think the register's wonderful "He may continue with his state of ignorance and non-enquiry no longer" telling-off was in May, so will be August. If anything transpires before then, I will of course update. And if anyone can think of anything to add before then, please do so.

[Hair Bear]

COSTS

 

The Registrar has got in touch with me, saying...

 

"Paragraph 4 of the EAT order sealed on 22 May 2014 adjourned consideration of the your costs application. An order striking out this appeal was issued by this court on 3 September 2014 and the issue of costs will now be considered. Please lodge within 14 days of the date of this email a schedule of costs in relation to the application set out in your Answer dated 17 February 2014. Upon receipt of such schedule Mr X [other side] will be invited to comment. Upon receipt of such comments your costs application will be determined."

 

I asked what Mr X had to say for himself after being given a whopping three months to respond. Apparently he didn't reply at all (that's really ticked me off - why give them that long if they aren't even going reply? Can I complain about the EAT giving them three months? Especially since I'm, once again, given only two weeks to reply).

 

I also asked what is it that I'm allowed to ask costs for. Is it just my time during the two weeks I was given to fashion a reply to their last appeal? Or is it for the whole time since they were struck off? The registrar replied...

 

"Please refer to Rule 34 of the EAT Rules 1993 (as amended) and paragraph 22 of the EAT Practice Direction in relation to costs."

 

Unfortunately that didn't exactly answer my question. Anyone with any clues?

 

Also: I'm assuming I've now won outright (I know that doesn't get me any money), is that correct? I'm not proposing to put the business back on Companies House, but if I did, would they be able to carry on with the appeal, or is that it - end of, dead and buried? I've won the Tribunal and there's no comebacks at all? Because if so, I could therefore try transferring the debt to the owner (the directing mind). That right?

 

Thanks in advance.

[steampowered]

I think you should prepare a costs schedule and claim costs for time spent on the appeal, at the litigant in person rate of 34 pounds an hour. You need to read Rule 34D of the EAT rules. Don't go overboard but do be realistic and claim for a decent number of hours.

 

It sounds like the appeal has gone out of the window, so you are now back to working out whether you try to have the company restored to the register and have a liquidator appointed, or whether you try to claim against him personally under s423 Insolvency Act 1986 (but note that this is not easy - remind me if you have any visibility over the former company's financial position or what happened to its assets? Any accounts available on Companies House?)

[Hair Bear]

Regarding "prepare a costs schedule and claim costs for time spent on the appeal": Just to be clear, are they/we talking only about the time I spent in the two weeks I was given to formulate a response to their LondonEAT appeal? Or is it a case of, I can apply for costs on my time from the moment they were dissolved (I literally went to court to battle against one of their appeals during that time)?

 

Regarding the company's accounts: I tried ringing everyone suggested to me on that one (Company House, Treasury etc) but got no luck. The only thing available is a post on company Check that says...

 

"Latest Accounts 31/01/2012

Cash £12,286

Net Worth £-54,769

Assets £64,786

Liabilities £34,694"

 

Thanks for helping.

[steampowered]

I would think you can only apply for time spent in relation to the appeal. The response from your barrister seemed to imply that you can go back to the date of dissolution but I'm not sure what the basis for that would be (though I guess you can always have a go).

 

If you find the company on Companies House webcheck and click the link for 'order information on this company', you can pay a pound to download the last set of accounts.

 

A negative net worth implies that the company is genuinely insolvent in which case that would explain why you didn't receive anything. I'm not sure how 65k of assets, 12k of cash and 35k of liabilities equates to a negative net worth though.

 

 

I wonder whether you should seek an order that this person come to court for questioning (in his capacity as a former director of the company) about the company's assets. I'm just not sure if you can do that in relation to a dissolved company, though.

[Hair Bear]

Their last set of accounts on Company House is dated 31st Jan 2012. The director applied for strike off April 2012 (less than a month after I won the main Tribunal, surprise surprise) and this was granted Nov 2012. Shouldn't their accounts go up to that date?

 

"Account details

Fixed assets 232,167

 

Current Assets

Stocks 7,500

Debtors 45,000

Cash 12,286

 

Total current assets 64,786

 

Creditors: amounts falling due within one year (34,694) [*unsure what the brackets mean - negative?]

 

Net current assets 30,092

 

Total assets less current liabilities 262,259

 

Creditors: amounts falling due after one year (317,028)

 

Total net assets (liabilities) (54,769)

 

Profit & loss accounts (54,770)

Shareholders funds (54,769)

 

Notes to the abbreviated accounts

 

Tangible fixed assets

 

Cost

At 31 Jan 2012 250,369

 

Depreciation

At 31 Jan 2012 18,202

 

Net Book Value

At 31 Jan 2012 232,167

 

Transactions with Directors

None

 

Related Party disclosures

None"