Cancelled wages, Help with small claims please!

[Ladybette]

Hi,

Thanks for looking, I hope you can help, any I get will be gratefully received.

 

I'll try not to ramble! My Husband started a new job at the beginning of Dec, working up to and including xmas eve and then went back to work on the 27th after having xmas and boxing days off (no other days off since he started).

He was then told on the 27th that he was no longer required (no reason given, just 'not suitable') but would be paid for the month and was given a cheque which he immediately paid into the bank. He was employed as permanent although contracts had not yet been given, and had got the job through an agency (the agency says that there was a verbal agreement between them and him and this is binding)

 

A few days into January we received the cheque back from the bank, it had been stopped. We checked with the bank and they confirmed that it was nothing to do with funds/ bank but actually had been stopped by the account holder/accountant/employer ( not sure who exactly).

 

My husband tried to call but has not been able to speak directly to this guy, The agency has not had any luck either and we don't think its advisable to visit him in person!

On advice from a friend and also a legal helpline, we have written to him giving him 28 days to pay before we start going down the small claims route.

 

It is now almost the 28 days ( in a week or so) and we were hoping that anyone might advise on filling in the paperwork for the claim? I have only experience of small claims from reclaiming bank charges and all the POC's were given in a template, this is the bit I am worried about.. what on earth do we write?

 

We want to claim for the original amount but also the claim costs and is it possible to claim for interest and also charges that we have incurred due to the money not clearing? That money was a months worth of bills that didn't get paid, including our rent, and we 've had at least £100 worth of charges because of all this.

I know that the claims have to be worded just right and it scares me to death as I just have no clue what to put, whether I need to quote laws or acts or whatever! will the clerks at the court help us phrase things correctly? Surely we can't just go with blank forms and expect them to word it all?

Now I'm rambling! sorry. Thanks in advance for any help

[Guest grizzleguts]

Hi, the fact you hubby was working (as you state ) for an Agency, it does not matter if the company disappear, he was working on behalf of an agency, they are responsible for his wages.

It does not matter if the company went bankrupt, your other half was working for the agency, as a representative, the company would have never paid his wages, the pay slips etc, are the agencies legal responsibility, claim any short fall through them, if they do not pay up, send them the letter before action, also include any bank charges you may have received, and then reclaim the charges again from the bank once the OFT have won their case (IF).

[Ladybette]

Thanks grizzleguts but I think maybe I wasn't clear enough, my husband got the job through an agency,but he wasn't working for the agency so they have no responsibility for his wages, pay slips etc. Thats all down to whoever hires him, Thanks for the input though, its much appreciated:)

[Ell-enn]

Hi Ladybette, I'm sorry to hear of this unfortunate outcome to your husband's employment - it must be very worrying and disappointing for you both.

 

I assume your husband has correspondence from the agency regarding his introduction to the company, the interview and appointment to the job? The agency will also have confirmation from the employer that your husband was recruited into the position and the agency will have invoiced the company for their fee.

 

However, there is usually a clause in the agency contract whereby if the employee is not suitable and terminated in the first month, no fee is payable. Unscrupulous employers have been known to avoid hefty agency fees by doing just that and it may be that your husband has fallen foul of this practice. The fact that no formal contract was issued is irrelevant as contract was implied when he commenced work.

 

By the way - did he receive a payslip with the cheque showing tax and NI contributions? by law an employer must issue a statement of pay and deductions whenever you are paid.

 

My advice to you would be to go to your local CAB, taking any paperwork relevant to the situation. They will be able to advise you regarding taking the employer to the small claims court.

 

Please let us know how things progress, or if you need any further information.

 

Kind Regards

 

Ell-enn

[Sidewinder]

I wholeheartedly agree with Ell-enn. This case is probably a little complicated and needs some specialist advice.

 

You can claim for charges incurred as a direct result of the cheque being stopped and the costs involved in bringing the action, plus interest at 8% per day. Speak to CAB and perhaps post a separate request for advice in the General forum of the website on this particular point.

[Goldlady]

I may be wrong but can't you go to an Employment Tribunal for unpaid wages regardless of how long you have been employed?

[Sidewinder]

You can, but I believe that a claim for losses as a result of the employer's actions fall outside of the ET jurisdiction. They will award for the wages part (as this comes under unlawful deductions under the ERA) but I don't believe that they can order payment of bank charges suffered as a consequence. Happy to be corrected though.

[Weird Al Yankovic]

You can, but I believe that a claim for losses as a result of the employer's actions fall outside of the ET jurisdiction. They will award for the wages part (as this comes under unlawful deductions under the ERA) but I don't believe that they can order payment of bank charges suffered as a consequence. Happy to be corrected though.

 

I believe the ET can as a Breach of Contract claim which the ET has jurisdiction for and remedy.

 

Failing that just make a small claim for the amounts of charges as it would not have been heard.

[Ladybette]

Thanks everyone, I think its probably best to contact the CAB. I will update when I have news!

[advisee]

Folks, I'm away at the moment (so no books etc with me) can someone tell me whether employment needs to be one month or four weeks, in order to be entitled to notice?

 

I'm just thinking that a proper wrongful dismissal claim could be made if so... instead of the three days until the end of the month that was offered...

 

In the absence of a contract (and particularly if this small employer may have gone bust, or whatever) then listing the company and the agency as joint respondents may be the way to go.

[Sidewinder]

It is a week's notice after one month and up to two years service.

[Ladybette]

Well, It is time for an update.

 

After taking a bit of advice and deciding to go down the small claims road, it being a quicker and more straight forward route, on the 14th Feb my husband very suddenly passed away.

 

I took advice myself from the CAB on whether I could still proceed and it was decided to go to the employment tribunal for the wages and not bothering to claim for any other losses. They accepted my claim, my husbands employer just about got any responses in with hours to spare, even sending me a cheque for half the amount the day before the hearing.

After sitting for 3 hours waiting for the case to be heard, the employers rep decided he couldn't wait any longer and managed to get the hearing postponed until July!

 

So now my situation is this, I have a cheque for just over half the original amount offered as full and final settlement.The employer is arguing that my husband worked less days than claimed as the agency sent the invoice dated from the week after he started, i have no proof of exact days worked except the fact that the employer wrote him a cheque for an amount that corresponds with the claimed amount of days (and i have that cheque as it bounced and was returned to my husband) When he wrote the cheque,the amount has been worked out down to the pence.( and to be honest, if you're going to sack someone you don't write a cheque for a weeks more money than you need to do you.)

 

I want to go through with the claim for the full amount as, apart from the money, I want to hear what the judges opinion is. Its quite obvious that this guy is taking the mickey.He also knows that my husband died and has not communicated with me once throughout the 12 weeks.He must also know how emotional it is to have this dragged out for so long.

 

Does anyone know if I can accept this cheque as part payment only or shall I just return it and say I'd rather wait for the hearing?

Would accepting it as part payment have any implications at the tribunal?

 

The money does matter but like I said I want a judgement so that I know I've done all I can for my husband.

 

Any advice will be welcome and I will also talk to the CAB again but am interested to hear your thoughts.

 

Many thanks,

 

Ladybette

 

Advice today (mon 12th)suggests that I may have problems if I should accept the cheque even as part payment, so back it goes tomorrow!

Edited May 12, 2008 by Ladybette
updating.