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Buachaill
Buachaill, Barrister
Category: UK Employment Law
Satisfied Customers: 8454
Experience:  17 years experience
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I was a 33% share holder in a small ailing company where I

Resolved Question:

I was a 33% share holder in a small ailing company where I suspect I
was deliberately set up to run an it as the sole director. My written
Director's contract was principally as a Valuer. I obviously attended
Company Meetings, few before I became the sole working
director, regular after the Company Secretary and Managing
Director resigned (swiftly in succession) but each were still continued as
33.33 % share holders. The both resigned in Early 2010 both
knew their Company Law!.

I took and kept taking Solicitor and Admistrator advice from September 2010
until I put the company in Administration on the 26th September 2011. I
was stressed out in 2009. I am bi polar and have been for years but had
always worked.

In essence I was not paid for the best part of a year, i.e. September 2010
until September 2011. The Debtors list was large, Advice from
the Admistrator was - do not wind up yet try and get the money in! It
did not come in and I pulled the plug in August / September 2011.
The Administration was to be voluntarily but the other two share holder
would not agree my appointment of the Admistrator so it became a
Court ordered Administration. All the staff were paid until a month before
the end.

I wrote to the Admistrator in or around September 2011 saying I was owed
circa £22,000, it was summarized but Redundancy was stated as "to be
as assessed . I have been under Psychiatric care ever since but never put
in a Formal Claim until 6 months after the Failure: I was beyond any
prudent action.

The insolvency service are insulting. They wobble over why I cannot be
paid anything. The insolvency service say "some" employees have been paid
but not me as I was not a real employee, as I worked without payment all
through without payment, I even introduced £2,000 into the Company to keep
my office lease going. "You were acting as an owner". There is plenty of
case law to support my employee status. The IS have just ignored it!

As an employee of the company I did not see I should resign as well the
other two as there was a substantial sum in the Debtors list and as I saw
it simplistically I had a duty of care to try to keep the business going
for Creditors.

It may have been a tactical error but it was an honest intent.

My main concern is my request for redundancy was never made in a
statutory form, Other than the letter to the Admistrator in 2011, nothing
was in writing until 6 months after after the failure.

I can provide correspondence but is there any chance of a claim, I can
prove serious mental health during and after the period, I though there was
Equity in Law over and above work practice.. I have not been able to work
since.

Sincerely,

Vincent
Submitted: 1 year ago.
Category: UK Employment Law
Expert:  Buachaill replied 1 year ago.
1. At the outset, you should realise that there is no inconsistency between being an executive director with an employment contract, as compared to a non-executive director with no employment contract. The real weakness of your claim is that any claim for redundancy must be brought within six months. Failure to make a claim for redundancy within six months is fatal to the claim as it means any action before an Employment Tribunal will fail. Whilst there is provision in the statutory code for disability affecting your capacity to act, this is not applicable in your instance, despite your bipolar disorder, because the disability was not operative at the time the six months elapsed. Effectively, once it is seen that you were able to function at the time and ensure your Administrator was appointed, you cannot then turn around and say "Well! I really was mad at the time and suffering from a disability due to my bipolar condition". It would be an exceptionally generous court which would find in your favour in such circumstances. Given the lapse of time, you must take legal action if you are to get your redundancy.
2. The issue of not being paid for one year and giving a £2k loan to the company are not insurmountable hurdles. However, alleging an operative disability when you are running the ship simply is not a runner in court proceedings. Additionally, you do not state whether you made a claim in the liquidation for your unpaid back pay. You cannot have redundancy unless you made a claim for unpaid wages.
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Buachaill, Barrister
Satisfied Customers: 8454
Experience: 17 years experience
Buachaill and 4 other UK Employment Law Specialists are ready to help you
Customer: replied 1 year ago.

Dear Buachaille,


 


I have only just found this apologies.


 


At the time the company failed I was actually undergoing Psychiatric treatment to the extent I had a letter for the Admistrator for all stating I could not take decisions affecting my financial future. I did not attend meetings or Court


 


Until very recently I was still affected by serious Mental Health problems to the extent I have just lost my Driving License.


 


I claimed the lost wages, loan and redundancy in a letter at the commencement of the Administration but only was in a state to pursue it formally 6 months plus the Administration. I still receive potent medication.

Expert:  Buachaill replied 1 year ago.
3. You can pursue a claim for your unpaid wages through the Employment Tribunal. However, given that bipolar disorder is a treatable psychiatric illness and given that even psychotic bipolar disorder can be treated with medication within three months, I still think your case does not have wings to fly, as you effectively would have to argue that you were psychotically ill for nine months. Taking medication is not unusual. I know one High Court judge who regularly takes medication for bipolar disorder and shows no ill effects. You also do not state whether you pursued the claim for unpaid wages in the liquidation. However, if y ou can get a psychiatrist to back up your claims, then you have a fighting chance. However, go in there with no illusions. This is a very difficult case to win.
Please RATE the Answer positively so that I may get paid
Buachaill, Barrister
Satisfied Customers: 8454
Experience: 17 years experience
Buachaill and 4 other UK Employment Law Specialists are ready to help you

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