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Ben Jones
Ben Jones, UK Lawyer
Category: Law
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For 2 years, until 16th Jan 2014, I was employee, director,

Resolved Question:

For 2 years, until 16th Jan 2014, I was employee, director, CEO and shareholder of a company which I set up from scratch as a joint venture between 3 other pre-existing companies and myself. This company had built up a £91m pipeline of business up to Dec 13, and would have started to repay directors' loans and dividends from January 2014. I am registered at Companies House as holding 51% of the shares. I am the only woman in a company where the culture is very much "Wall Street / 1980s" mentality.

In Oct 13, I approached one of the directors confidentially concerning the assault of my daughter who worked in another director's separate business. I made it clear that I could no longer work with that person, but was pragmatic enough to realise that commercially they needed him more than me. I offered to move aside from January 14 if

- I was paid salary until January 14, and then 6m PILN/garden leave
- my loan of £35k to the company was repaid
- my expenses were repaid
- my profit share up to March 2014 was honoured
- my shares were bought back

Instead of this remaining confidential, this director told the others, including the director I had complained about, with the following result in November:-

- I was told that I would be paid salary until the end of the month since they classed me as self employed - this was on the basis that they insisted that I gave them monthly invoices even though my initial employment offer stated 3 months as self employed and then onto the payroll. I spent on average 60 - 80 hrs per week on this job, did not work for anyone else, ran board meetings etc and had my expenses paid monthly. My salary was £50k pa.
- my expenses until the end of November to be paid
- my loan to be repaid as and when the decided - this had been agreed by a loan agreement in Aug 13, which although signed by me had not been signed by them and returned. Para 5 refers to the loan being repaid before any dividend, whereas para 6 refers to it being paid after, which was definitely against the spirit of the agreement. There was no dispute about the figure.
- no mention was made as to profit share or payment for my shares.

I consulted an employment solicitor and put in a grievance and a DAR. In response, the other directors summoned me to a meeting in early December and attempted to falsely put the company into insolvency, which with the help of a commercial litigation solicitor, I refuted and managed to keep the company afloat.
Subsequent to that I was then bullied and harassed, my e mail either stopped or hacked into and I was prevented from obtaining company information. In the end I resigned citing constructive dismissal. sexual discrimination, bullying & harassment and claiming for

- pay until January 2014 apprx £11k
- expenses to December 13 - approx. £3.3k
- repayment of my loan £approx.£35k
- lawyers fees of £25k

Despite employing an employment law solicitor, a commercial litigator and now a debt collector ( costing an additional £8.3k), I have only received a without prejudice offer of £42k which doesn't cover the legal fees I've incurred nor anything to do with my profit share nor payment for transferring shares. Any attempt via the debt collectors has either been ignored or parried using the excuse that the debts are disputed, even though one of the excuses was that they didn't like the word "salary" on the invoice. The solicitor from the debt collector is therefore reluctant to issue a statutory demand. Although I have paid some of the previous lawyers fees, I still owe the majority of them so am now being threatened legal action by them. I don't understand why, when I can prove that these debts are owed, and when this company has acted so dishonestly, that after 5 months I have still failed to obtain what I am owed. Should I go down the employment tribunal route or would they manage to get it thrown out on the basis that because I submitted monthly invoices, albeit at their insistence, I am self employed and therefore not covered by an ET. They also failed to acknowledge my grievance and DAR.

Any help and assistance you could provide would be much appreciated

Bernie
Submitted: 3 years ago.
Category: Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today.

Ben Jones :

Whether you are able to pursue the matter via the employment tribunal would depend on your employment status and if you were in fact an employee. It does not matter what you were labelled as by the business, it is the actual relationship that would be examined and how you were treated.


 


Following years of case law, a number of established factors have generally been accepted as a reasonably accurate way of establishing whether someone is an employee or self employed. The courts would still use some of these to get an overall picture of the employment relationship and determine the person's employment status.


 


The tests that are most commonly used can be found here:


 


http://www.hmrc.gov.uk/employment-status/index.htm#1


 


By following the link and answering the questions you may get a good idea of what your employment status is, although it is worth noting that these are still only an indication and only a court can provide a definitive answer. They are nevertheless useful to use in negotiations with the employer or to allow you to decide if it is worth trying your luck at tribunal.


 


However, even if you were to claim in tribunal you can only claim for the salary you believe you are due, you cannot claim for the expenses (as this is not classified as wages), or the loan and legal fees incurred to date.


 


This means you can only realistically make a claim there for the £11k and would have to seek other avenues to recover the remainder, which could only really happen in the county court. So instead of making one claim in the tribunal and a separate claim in the county court you could seek to make all claims in the county court as you can still seek to recover the salary there as a breach of contract claim and keep all claims together.


 


Due to the amount you are pursuing and the importance of getting it right you may be best advised to engage a solicitor specialising in litigation to pursue those claims for you in the court, although it is certainly not a legal requirement to do so.

Customer:

Thank you for the above - can I apply via the courts? if so, how do I do this and do I need a barrister or solicitor to draft my claim? How do I deal with the issue of sexual discrimination and constructive dismissal? How would I deal with money owed for my profit share and shareholding?

Ben Jones :

You do not need a lawyer to make any of the claims for you, I just mentioned it may be worth considering due to the value of your claims, to ensure you make the best possible claim.


 


The constructive dismissal and sexual discrimination claims are dealt with in a tribunal, although the first of these would again depend n your employment status as only an employee can make it so it would likely come down to the tribunal examining your relationship with the employer to decide whether you were an employee or not before deciding on whether to allow the claim to proceed.


 


The loan and shareholding claims are something that would have to be pursued through the county court

Customer:

thank you - nearly there. Presumably, I would apportion the legal fees I have incurred to date amongst the different categories? Can I apply to the county court online and do you have a web link? Are there any fees to submit the claim? What are the max payouts for constructive dismissal and sexual discrimination, and failure to acknowledge a grievance and DAR?

Ben Jones :

the issue is you do not get awarded legal fees in the tribunal so you can't just claim for them from the start. In the county court you also can't just include in your claim at the start legal fees incurred to date and generally the court will only consider costs incurred in pursuing a claim so from the point it has been issued and even then they will be assessed at the end before an order for costs is made. So in all honesty it would be quite difficult to recover the legal costs incurred so far when no official proceedings have been made yet.

A claim for financial compensation alone can be made in the county court online via www.moneyclaim.gov.uk and there will be fees payable depending on its value.

Constructive dismissal is capped at around £74,000, discrimination is unlimited. Failure to deal with the ACAS Code on grievances can increase an award by up to 25%, there is no compensation for failure to deal with a DAR

Customer:

very very helpful - thank you

Ben Jones :

You are most welcome

Customer:

just to clarify - would I be best dividing my potential claims between ET and county court - or should I apply for all of them, including discrimination and constructive dismissal, through CC?

Ben Jones :

you can't claim constructive dismissal in the CC so if you wish to pursue all claims you will have to divide them up, or you could decide to pursue those that are most likely to succeed

Customer:

excellent - many thanks for your help and have a good evening

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