Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today.
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:
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.
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?
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
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?
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
very very helpful - thank you
You are most welcome
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?
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
excellent - many thanks for your help and have a good evening