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Ben Jones
Ben Jones, UK Lawyer
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The last company I worked for went into Voluntary

Resolved Question:

The last company I worked for went into Voluntary Liquidation and the final day before liquidators were in control was the 20th Nov 2015. I had no directorship in the previous company and decided that I could still make a viable business out of the business model so I set up a new company on the last week of Oct 2015, and got all the bank account details and VAT number through just as the liquidators were taking control, so there was no time to discuss with the staff, other than to offer all remaining staff contracts with the new company, so offered to TUPE them all across to the new company. One staff member decided she didn't want to come across as felt the terms were not the same and resigned 2 days later stating that she was takign on the company for unfair dissmissal. She actually resigned from the old company and didn't join the new company at all, does she have a claim against the new company as she has taken this to tribunal. Strangely enough she went to ACAS and started an Early Conilliation Case against the old company and when that fialed she has now continued the claim against the new company and is also still using the same ACAS number which if course is against the old company not the new. Can she do this as the number is ***** against the claim on the ET1 form?
Submitted: 1 year ago.
Category: Law
Expert:  Ben Jones replied 1 year ago.

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today. When was the claim issued?

Customer: replied 1 year ago.
It's a long story, and correspondence were going to wrong address so I'm just reveiwing the ET1 which was issues on the 26th Feb, and trying to complete my ET3
Customer: replied 1 year ago.
I'm askign these questions because of an email I got from the courts as follows:Employment Judge Cadney directs that I write as follows:
To the Claimant:
Do you accept that the claim is against Global Business Events not GB Intelligence Ltd?
Please reply in writing by 4 July 2016.
To the Respondent:
The Tribunal has an ACAS EC Certificate with the respondent identified as GB Intelligence Ltd.
Which too me was asking why the ACAS number refers to a different company?
Customer: replied 1 year ago.
In other words the ET1 is claiming against my company GB Intelligence Ltd, but the ACAS number is ***** Global Business Events Ltd, which is the company she resigned from without ever joining my company.
Expert:  Ben Jones replied 1 year ago.

Thank you. There is actually some case law on this, specifically Mist v Derby Community Health Services NHS Trust. There, the EAT held that it is not necessary for a claimant to go through the early conciliation process again before applying to amend an existing claim to include or substitute with a new respondent. The facts were somewhat similar in that the claimant had started the conciliation process against the original employer in a TUPE transfer but later tried to add the new employer. They allowed that even though no conciliation process had been undertaken against the new respondent or that the time limit to claim had recently passed.

So it is possible for the claimant to do this and the tribunal retains the legal discretion on deciding whether to allow it.

I hope this has answered your query. I would be grateful if you could please take a second to leave a positive rating (3, 4 or 5 stars) as that is an important part of our process and recognises the time I have spent assisting you. If you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you

Customer: replied 1 year ago.
Hi, This is slightly different becasue she hasn't added a claimant she's totally ignored the old company and just added teh new company.
Customer: replied 1 year ago.
there is no mention of the new company on the ACAS form and no mention of the old company on the ET1
Customer: replied 1 year ago.
Also remember that she actually resigned from the old company and never joined the new company.
Customer: replied 1 year ago.
are you still there?
Expert:  Ben Jones replied 1 year ago.

The facts were the same in the case I mentioned - the claimant issued an early conciliation claim against the old employer and never mentioned the new one. Later on she EC process finished and she issued tribunal claims against the old employer, again not mentioning the new one. Only after some time did she apply to include the new employer in the claim and was allowed to do this. So whether it is an addition or a replacement, it can still be covered by the binding case law. The fact she never transferred to the new employer does not mean she cannot claim against them - if there was a valid TUPE transfer and the resignation was as a result of this transfer then a claim can be made against what should have been their employer following TUPE

Customer: replied 1 year ago.
OK, So nothing I can do then?
Expert:  Ben Jones replied 1 year ago.

The claim may be able to proceed with you as a respondent in it but that does not mean they will be successful and you will have any liability. So you can proceed with defending it and see what the tribunal decides

Customer: replied 1 year ago.
also of course the old company went into liquidation remember! does that make a difference
Expert:  Ben Jones replied 1 year ago.

Usually there is no TUPE in insolvency situations unless you took on the old one as a going concern (i.e. you rescued it to allow it continue trading).

Customer: replied 1 year ago.
Just checked that case you mention and it was eventually thrown out for the following reasons:
The employment tribunal allowed her to add the community health trust as second respondent, but then the claim against it was struck out, the judge holding that it would have been reasonably practicable for Mrs Mist to include it at the time of the original claim and she was now out of time.
Customer: replied 1 year ago.
she should have included it at the time?
Expert:  Ben Jones replied 1 year ago.

This was the tribunal decision you refer to - it went to the Employment Appeals Tribunal and was overturned - my response was based on the subsequent appeal decision, not the tribunal's decision.

Customer: replied 1 year ago.
This is true, I paid £30K for the assets of the old company.
Expert:  Ben Jones replied 1 year ago.

And you continued the business they were operating, i.e. you did not completely change the purpose of the business?

Expert:  Ben Jones replied 1 year ago.

Also so I can contnue assisting please quickly rate my answer by selecting 3, 4 or 5 starts at the top of the page - it only takes a second to do and is an important part of our process. I can still answer follow up questions afterwards if needed. Thank you

Customer: replied 1 year ago.
It's the same business model and agreed to TUPE all staff across.
Expert:  Ben Jones replied 1 year ago.

Ok so that will likely mean a TUPE transfer was in place so the person can indeed consider claiming against the new employer.

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