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Hi,

 

My girlfriend works in a cafe which recently closed for refurbishment during this time she was told that she would still be working to help refurbish tidy the place up...etc

She would normally get paid on each friday but for the 3 weeks the owner has said she cannot afford to pay her or any of the other staff as the cafe has not been takin any money while closed. She has managed to get £60 off her by going into the cafe today demanding some money as she has a child to feed.

The owner is now also saying that no one went through the books during the period it has been closed so the owner says she will not be getting paid minimum wages for these 3 weeks.

 

Is this legal? Is there anything we can do to get money owed

 

Thanks

Mark

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The simple answer is that the employer cannot simply suspend your girlfriend's contract of employment whilst they are closed unless there is a clause within the contract which allows them to do so, or unless she agreed by mutual consent to a period of being laid off without pay. In the absence of such a clause, failure to pay is classed as an unlawful deduction.

 

Does she actually have a written contract? Not neccessarily an issue as the terms can be implied based on custom and practice. How long has she been working there? What exactly does the employer mean by 'no one went through the books'? Does the employer deduct tax and NI from wages or is it a 'cash in hand' arrangement (if the latter then you may have a problem!).

 

The fact that there has been no money coming in is not your girlfriend's concern and wages should have been factored into the cost of refurbishment. I would suggest that your GF writes to the employer stating that it had been agreed that she would work on other duties to assist during the refit and understood that she would be paid her normal wages throughout. She appreciates that the owner has not been receiving income from customers during the refurbishment, but hopes that he understands that this is not her concern, for unfortunately household bills cannot be set aside during the period that the shop is closed. She understands that Section 13 of the Employment Rights Act 1996 makes any deduction from (other than those due under statute or made by written agreement with the employee) or non-payment of wages unlawful. Consequently she trusts that the wages due to date, less the amount of £60 net already paid, will be forthcoming within the next few days.

 

If the wages are not paid, then this is a matter for a Tribunal to order the payment.

Any advice given is done so on the assumption that recipients will also take professional advice where appropriate.

 

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Thanks for your reply. She does not have a contract she has worked there for about a year but in this year she had 2 months at another job then went back to the cafe.

She has not agreed verbally to be paid cash in hand or to accept anything less than what she would get went open normally but the boss is saying that everyone agreed to this before they closed which is a complete lie as she would not have agreed to this in the first place.

 

She said that no one went through the books for the time it was being refurbished so basically made it look like there was no staff working during this time so she is able to pay them whatever she feels like.

 

 

Thanks again

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She should have been given the contract shortly after she started working there. A contract does exist and she should ask for a copy of it. As for not going through the books, sorry but can't help you there. No doubt sidewinder will be along shortly to fill you in in more detail.

In the meantime you might find this useful. Acas - Employment contracts

HALIFAX: 13/01/07 Sent S.A.R - (Subject Access Request) letter (marked as rec'd 16/01)

Paid in full in March 07

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Sidewinders post says it all really written or not a contract does exist Based on Sidewinders post the next step is upto the OP

 

The only thing I would add is have you spoken to fellow employees & do they confirm your version of events & if not you must do so asap in case they are got at

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As previously stated, your GF should have been given a statement of the main terms a short perido after starting work. This in conjunction with any other documents, handbooks and clauses accepted through custom and practice form a contract of employment. If the employer did not give a written statement on starting work, detailing normal hours of work, rates of pay etc then this in itself is an offence, but is not neccessarily relevant in this case. Your GF has had two periods of employment at the cafe, and whatever has become the norm through custom is an implied contractual term. Therefore, if your GF has 'always' worked say 20 hours a week and the employer has been happy to pay her on that basis then this would be her implied contracted hours.

 

The employer cannot claim that your GF has agreed to not being paid during the closure as any such agreement must be in writing - the ERA is clear that deductions (or non-payment) from wages must be with the written agreement of the employee. Nevertheless, agreeing with JonChris, she should speak to the other staff and see what they have or have not agreed to. I am still not sure as to whether she is paid from the till, or receives a wage packet and payslip with any deductions made at source. The complication insofar as pursuing this if a cash in hand arrangement is the norm is that your GF may not have been paying tax (and irrespective of the rights and wrongs on the employer's part it is her responsibility that her dues to HMRC are paid).

 

Speak to the other staff and then write to the employer.

Any advice given is done so on the assumption that recipients will also take professional advice where appropriate.

 

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Thank you all for your replies.

 

She definately has not had a contract and my GF says that she wont even have made a contract. She went in on saturday demanding some money which is when she go £60 the boss then said that she does not work here anymore and is goin to work for the boss friend in another cafe. She also said that its because she cannot have some one working 9-4 she finishes at 4 to get to nursey in time for 5.

But the boss new this from the start it sound like she is trying to get her to leave without her sacking her.

As for wages yes she did pay tax and NI...etc and this gets deducted before she gets wages on a friday (when she gets them) but i do not think she gets a payslip detailing what she has been paid for and what deductions.

 

She wants out of this cafe but she just needs to find somewhere else first before she does leave. Can the boss just sack her as she has not done a full year since returning to the cafe?

 

 

Thanks

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"...the boss then said that she does not work here anymore and is goin to work for the boss friend in another cafe..."

 

A material change to her contract - she cannot just dictate her normal place of work - this can only be negotiated. Dodgy ground!

 

She also said that its because she cannot have some one working 9-4 she finishes at 4 to get to nursey in time for 5.

 

Indirect Sex Discrimination. If the employer pushes this point then you would have a case to take to a Tribunal. Your GF's role as a mother needing to provide childcare is something which the employer has to deal with - they employed her in the full knowledge of her circumstances. If she is disciplined (dismissed) or moved because her status as a mother is inconvenient and life is made so difficult for her that she feels that she cannot continue working there, then she has a case for unfair dismissal as she has been treated differently due to her sex by implication. Definitely dodgy!

 

But the boss new this from the start it sound like she is trying to get her to leave without her sacking her.

 

More clear cut if she did, but as stated previously she could allege Discrimination if she was forced to resign because of the reasons stated above.

 

As for wages yes she did pay tax and NI...etc and this gets deducted before she gets wages on a friday (when she gets them) but i do not think she gets a payslip detailing what she has been paid for and what deductions.

 

A payslip detailing deductions is a legal right. She should insist on receiving one.

 

She wants out of this cafe but she just needs to find somewhere else first before she does leave. Can the boss just sack her as she has not done a full year since returning to the cafe?

 

Yes the boss can sack her, but whilst true that she would have no automatic rights to claim Unfair Dismissal without having 12 months service, this is not required in cases of discrimination.

 

I strongly suggest that your GF raises a written grievance against her treatment:-

 

1. She has not been receiving detailed payslips, which she requires for Income Tax and NI purposes.

2. She has made no agreement, written or otherwise to have her wages stopped during the refurbishment which she is advised is contrary to the Employment Rights Act, Section 13 and considers this an unlawful deduction.

3. She is concerned at the suggestion that her normal place of work is to be changed against her will and without negotiation, which is a change to her contract.

4. She is concerned that she is being made to feel an 'inconvenience' as she has childcare responsibilities which have in the past been acceptable to the employer, but her Manager has now told her are unacceptable.

 

The responses given will undoubtedly point your GF in the direction which she should take next!

Any advice given is done so on the assumption that recipients will also take professional advice where appropriate.

 

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Thanks again. My GF has been in touch with a solicitor which has told her that as you said yes she can sack her but must pay her a weeks notice. She went in the cafe yesterday to be ask what shes doing there as she doesnt work there anymore so basically she has been sacked now.

 

So today my GF is phoning her telling how much she is owed including the weeks notice plus week in hand she worked and any holidays owed. I am now thinking that when she tells the boss this she will say right you can work this week then would she be allowed to do this when she said that to her yesterday?

 

The solicitor says to tell her to pay the money owed if she does not she has an appointment to go see the solicitor on 1st July.

 

Thanks Again

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mjones if the employer does say she can work it'll just be another means to stall paying her. Suggest she demands full payment of ALL monies owing & moves on with her life & if she doesn't get paid take up the solicitors offer

 

It might be a good idea for her to put her demands in writing & send recorded to the employer so when she turns up there can be no excuse by the employer they didn't know so don't have the money available to pay her

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Shes has spoke to her boss today. Shes saying there no employment contract because everyone that starts working there is on a 6month trial so she doesnt need to give one. She has agreed to pay her for the hours while closed which she said she will drop of tonight.

 

She is however refusing to pay the weeks notice and says that she can take her to court/tribunal but theres no way shes getting it.

 

She also worked a week in hand when she stated should she be getting this back?

 

The employer is now also saying shes bankrupt and waiting to hear from the courts. If she does go bankrupt does this affect her chances of getting what shes owed?

 

 

All your help is much appriciated.

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Thanks again. My GF has been in touch with a solicitor which has told her that as you said yes she can sack her but must pay her a weeks notice. She went in the cafe yesterday to be ask what shes doing there as she doesnt work there anymore so basically she has been sacked now.

 

Dismissal for trying to enforce a statutory right is like discrimination: it is automatically unfair dismissal, even if the employee has worked there less than a year.

 

In the this case the statutory rights are not to have illegal deductions made from pay, the right to payslips, the right to written terms of employment, and the right to enforce the minimum wage.

 

If the employer is going bankrupt then I would start a tribunal claim ASAP.

Post by me are intended as a discussion of the issues involved, as these are of general interest to me and others on the forum. Although it is hoped such discussion will be of use to readers, before exposing yourself to risk of loss you should not rely on any principles discussed without confirming the situation with a qualified person.

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From my experience, she is entitled to a minimum 1 week notice or 1 weeks wages.

 

No pay slip but deductions made! Get your g/f to check this out with the tax office as just maybe her employer never really paid it?

 

And finally, the shop is being re-fitted but gone bankrupt! Are you sure?

 

Don't be fobbed of...

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Right well she did turn up last night with all money owed except the weeks notice which she is still refusing to give her.

Now is it work pursuing this for the sake of £120 since if she does declare herself bankrupt there no way of her getting it anyway. I know its the principle that she shouldnt get away with it but im thinking just leave it as that least she got what shes got what she worked.

 

Thanks Again for all your help i dont think we would of got any of it back with all you help.

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If it was me and I had been treated like that I would make a nuicance of myself and send a Letter Before Action detailing what I considered still outstanding - one week's notice plus any holiday pay due.

Any advice given is done so on the assumption that recipients will also take professional advice where appropriate.

 

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