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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 45318
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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If you are the sole employee of a limited company and your

Resolved Question:

If you are the sole employee of a limited company and your boss (who is is the sole shareholder and owner of the business ) says he is resigning, without offering pay in lieu of notice (3 months on contract) does this equal a fundamental breach of the terms of your contract, constructive dismissal or the basis for redundancy?
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. You say you are an employee but also that you subcontracted to the company - are you actually an employee or a contractor?

Customer:

I am a contracror

Customer:

I am a contractor at Samsung, whilst being employed and paid a salary by blueprint

Ben Jones :

So you are an employee of the company but are then sent out as a contractor to another company?

Customer:

yes

Ben Jones :

is the company basically closing down?

Customer:

yes, he

Ben Jones :

How long did you work there for? Just to let you know I will have a short connection downtime any minute but will be back on within 20-30 mins and will fully answer your query then, thanks

Customer:

four years

Ben Jones :

ok thanks I will respond shortly

Customer:

Are you coming back?

Ben Jones :

yes I am here now

Customer:

thanks

Ben Jones :

just getting my response ready, won't be long

Ben Jones :

If your employer is closing the company down and it will cease to trade, then that would amount to a redundancy situation. Your employment can be legally terminated for redundancy but you would be entitled to your contractual notice period, redundancy pay (as you have more than 2 years’ service) and any accrued holidays.


 


If the employer is refusing to pay you any of the above you would be able to pursue him for the amounts owed. You can only pursue the limited company as the employer, but if he refuses t pay then you can petition for the insolvency of the company and try to force a payout that way.


 


If, following insolvency, the company is still unable to pay you, then you may take your claim to the National Insurance Fund, which is a Government scheme that covers part of your wages, holiday pay and redundancy owed if your employer has become insolvent and is unable to pay you.

Customer:

The reason given for his leaving the company was a conflict of interest with other business interests, not insolvency. He is however a experienced accountant and I fear the advised course of action would allow him to salt away any funds. What about breach of contract currently he has accused me of embezzling the monies from these invoices and is threatening me with legal action if I don't pay up by May 2nd.

Ben Jones :

I understand he is not insolvent now but this is what you could eventually try and force if he is refusing to pay you, therefore kick starting the process of trying to force him to pay. Or you could fist make the claim in the employment tribunal for the money owed and then use the judgment you are likely to get to try and force the insolvency through – either way, if he is refusing to pay you could go down that route and remember that the Government will only step in to help if the employer has become insolvent

Customer:

He employed me under the pretense I was a minority share holding director with one other director who has since left. We have only subsequently become aware that we were never registered directors though my contract states that I was employed as a director. We have checked companies house and there is no record of us on any documentation and never received share certificates. He has also failed to pay 3% of my annual salary towards a pension for the last 5 4 years amounting to more than the invoices in question.

Customer:

4 years

Ben Jones :

the issue with the directorships/shareholdings is a corporate law one, not en employment one so I cannot really comment on it. In terms of the unpaid pensions contributions that is a breach of contract claim, which needs to be made in the civil court rather than the employment tribunal

Customer:

To be clear was his unilateral decision to collapse the company a breach of the fundamental terms of his contract with me, he being my sole employer 100% shareholder of the business.?

Ben Jones :

he can close the company down at any time, that in itself is not a breach - the breach would be not paying you what you were due as a result

Customer:

My behaviour over the invoices he is arguing was a breach of contract does this subjugate me ability to claim redundancy?

Customer:

He made no offer of redundancy but did offer to transfer the business to me

Ben Jones :

No, the alleged breach of contract would not prevent you claiming redundancy - the two are separate

Customer:

How are redundancy payments worked out? and is this area of law open to any interpretation that are we pretty sure to win how is he likely to try and weadle out?

Ben Jones :

they are set in stone in employment law and depend on various factors:

https://www.gov.uk/calculate-your-redundancy-pay

Customer:

I believe he has broken his duty of trust and confidence with his behaviour through out the employment would this be a defense against his claim that I have breached my contract?

Ben Jones :

there could be an argument of the initial breach being by the employer but that is only something a court can decide if it was the case, but of course you can raise it as a defence

Customer:

What would you advise my next step especially as he wants us to repay the monies by 2nd May would doing so be an admission of guilt?

Ben Jones :

the two are separate issues you nee to pursue the money he owes you yourself, write a letter stating what you are owed and date for payment and advise him you will take the matter further if necessary then if he has not paid all you can do is make a claim if you want

Customer:

Tribunal for redundancy, civil claims court for pension and settle the money from invoices?

Ben Jones :

the invoices issue is the civil court matter too if needed but can be settled between you if you wanted to

Customer:

Sure he is saying it's a court issue and I believe he has libeled me by ccing people into an email where he accussed me of theft and embezelment

Ben Jones :

well if it is not something that you can resolve directly with him it would be a court issue in the end, assuming one of you takes it there

Customer:

Do we have a strong hand he is very wealthy?

Ben Jones :

for the invoices - I can't say, I have very little information about that issue, I simply cannot make a comment on prospects of success, but for the rest you have a good claim

Customer:

Thanks so much for your help you will get a great rating from us

Ben Jones :

you are most welcome, all the best and good night

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 45318
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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