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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 45363
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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Calvin here Following a pre-pack sale of my ex company

Customer Question

Hi !
Calvin here
Following a pre-pack sale of my ex company due to insolvency, I was transferred under TUPE. I was owed 1 months notice plus 9 Days holiday. I also had a car as part of my contract. I resigned immediately due to an untenable situation.
My car was seized by the lease company the day after and I was left without a vehicle for the remainder of my notice.
NewCo also withheld 2 weeks pay saying we had a verbal agreement that I would take it as holiday. (I didn't have a job to go to so wouldn't agree to that).
so.....
Can I claim in the small courts for the short pay and missing benefits?
Did they break the terms of my contract by not sorting me with an alternative for my car benefit, thus making the contract void?
Submitted: 8 months ago.
Category: Law
Expert:  Ben Jones replied 8 months ago.
Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today. When did you leave?
Customer: replied 8 months ago.
Hi Ben
15/04/16 was my last day
Expert:  Ben Jones replied 8 months ago.
Sorry my connection dropped. Did you resign before the transfer, in effect not wishing to be transferred. or did you actually start working for the new employer before resigning?
Customer: replied 8 months ago.
I resigned at the point of transfer.
Customer: replied 8 months ago.
offering to work my notice
Expert:  Ben Jones replied 8 months ago.
Did they ever give you notice to take the holidays as part of your notice period? Also did the contract have anything which said the car benefit could be taken away?
Customer: replied 8 months ago.
No notice for holidays, I asked to work it. We even discussed me working at the NewCo offices as opposed to OldCo offices. I have numerous emails requesting clarification. The outgogoing FD from OldCo even gave them a full statement of salary liability to the NewCo."you will be provided a motor car by the company for the express purpose of completion of your work duties" - The rest of the point refers to its upkeep and taxation liability.
Expert:  Ben Jones replied 8 months ago.
Ok so when you transfer under TUPE your contractual terms and conditions transfer from the old employer to the new one. So things like annual leave allowance (including accrued leave) and contractual benefits will also transfer. Therefore, assuming the transfer had taken place these terms would have transferred over with you. In terms of the holidays the employer could have forced you to take any outstanding holidays as part of the notice period but they must have given you notice of this. This notice must be at least twice as long as the leave to be taken. So let’s say they wanted you to use up 9 days’ worth of holidays during your notice period they must have told you of their intentions at least 18 days before you had to take the leave. If they did not comply with these notice periods then the leave will remain outstanding and must be paid to you on leaving. In terms of the car provision, your terms should remain in force during your notice period. So unless they had a clause which allowed them to take your car away during your notice period they should have allowed you to continue using it. Withdrawing it would entitle you to claim damages such as the equivalent car allowance you would have received had you not had a car but received an allowance. That is usually a few hundred per month but it would depend on the type of car and its value. You can therefore make a claim for these things but you may be better off going to the employment tribunal as that is the usual venue for these matters. This is your basic legal position. I have more detailed advice for you in terms of the next steps you should follow to progress this, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, there I no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 45363
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
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Customer: replied 8 months ago.
Thats Grand!
I am also very interested to understand that if they have broken the terms of the contract that they have effectively made the contract null and void?
Expert:  Ben Jones replied 8 months ago.
Thank you. A new feature in the employment tribunal’s claims process is mandatory early conciliation with ACAS. This requires prospective claimants to notify ACAS and provide details of their intended claim and they would then try to negotiate between the claimant and respondent to seek out of court settlement in order to avoid having to take the claim to the tribunal. It is possible for the parties to refuse to engage in these negotiations, or that they are unsuccessful, in which case they would get permission to proceed with making the claim in the tribunal. If negotiations are initiated and settlement is reached, then the claimant would agree not to proceed with the claim in return for the agreed financial settlement. The conciliation procedure and the form to fill in can be found here: https://ec.acas.org.uk/Submission/SingleClaimantPage In terms of the time limits within which a claim must be presented, the early conciliation process places a ‘stop’ on that and the time between notifying ACAS and them issuing permission to proceed with the claim would not count for the purposes of these time limits (3 months in your case). As to the contract being null and void what are you trying to avoid within it?
Customer: replied 8 months ago.
Thank you and well spotted, I have been accused of breaking restrictive covenants by releasing data to suppliers, I have had contact with them but not breaking any confidentiality agreements. I was going to let the whole thing lie but now they have started this I think its time I acted.
Incidentally they have accused ex-employees of this before on two occasions. Both never went anywhere.
Expert:  Ben Jones replied 8 months ago.
Restrictive covenants are often only used as a deterrent rather than a legally enforceable thing but they can certainly take it further if they wanted to try their luck. I terms of them being void, it would happen either if the employer had dismissed you in breach of contract (not the case here) or if they had committed a fundamental breach of contract. Only a court can decide whether the breaches here were serious enough but you may of course use this argument to try and fend off any potential action by the employer
Customer: replied 8 months ago.
That's kind of where I was with it all, in your opinion should I still proceed with ACAS? I don't have any assets or cash anyway.
Expert:  Ben Jones replied 8 months ago.
Hi sorry I had to go offline last night. You can certainly still proceed with ACAS - the employer cannot make a counterclaim for the alleged breach of the restrictions through ACAS, they have to take formal legal action and employers rarely do so
Customer: replied 8 months ago.
Thanks Ben, needed to sleep?
This is solid advice, thanks again.
I will proceed todayAll the best.
Expert:  Ben Jones replied 8 months ago.
Yes, sorry it was way past my bed time on a school night. Best of luck, feel free to get back to me if you need further advice

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