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Withholding pay after gross misconduct.

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My friend lost his job after gross misconduct. He was working as a care assistant and due to his situation at home he was stealing food from work. Apples, cheese, butter and so on, not huge amounts but the manager noticed the quantities missing.

 

They caught him in the morning after night shift, told him to go get the stuff he stole from his car. He was told to report to a police station where they took his fingerprints and all his details. A dismissal letter from his employer was waiting with the policeman.

 

He worked for half a month + he has 12 days unused holidays for this year. He was always paid at the beginning of a month, by 5th, but he still hasn't got the money in his bank account.

 

He was calling the manager all day yesterday and the boss himself. The manager says she doesn't know what happened and that she doesn't have contact with the boss since his phone is turned off. As I write this he is trying to call him again and the voice mail is answering. The manager said that maybe he took the money to cover the loss of what my friend stole, but surely it wasn't worth 700 pounds.

 

We would like to know what to do in this type of situation, who should we contact about this?

 

Thanks in advance!

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You would be entitled to any holiday pay left on a pro rota basis (If the holiday year is December then you would obviously get most of it, otherwise it would be the amount you have accrued so far). Payment can only be deducted from PAYE if it is in the contract, and as such the employer would usually have to seek alternative methods to cover losses. Check the contract and look for terms to deduct money for theft or loss.

 

Source: AUnfair Dismissal - Gross Misconduct - Salary Deductions - Maternity Leave - LegalDay


Ex-Retail Manager who is happy to offer helpful advise in many consumer problems based on my retail experience. Any advise I do offer is my opinion and how I understand the law.

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The problem is that he doesn't have any contract. He wasn't given any even though he asked about it several times there were always some excuses. He worked there for almost 2 years.

 

It looks like they just don't want to pay him for the days he worked + holidays. The boss's phone is still off and the manager hasn't heard anything from him yet, or so she claims.

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Finally we got through to the boss and he said that he took the money to cover his losses and that we should stop calling him. He turned off the phone again.

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You always have a contract whether it be written or not, however you are always entitled to what are called written terms of employment which must be provided within two months of starting work.

Source: Employment contracts : Directgov - Employment

 

I would put everything in writing, generally sending it recorded delivery, requesting payment that is due.


Ex-Retail Manager who is happy to offer helpful advise in many consumer problems based on my retail experience. Any advise I do offer is my opinion and how I understand the law.

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He wasn't given the terms of employment, even though he requested them several times. They just didn't give him any information.

 

I seriously doubt that putting everything in writing is a waste of time. He spoken to the boss and clearly he doesn not want to pay anything. Time is the issue here since it's beginning of a month and the bills are starting to roll in.

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How long did he work at this place?

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He worked there for almost 2 years.

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The thing is if the boss isn't going to budge then you do need to start putting everything in writing, unfortunately it will require things like this and possibly a court summons to get the result you require. Hopefully it won't come to that, however especially on CAG we recommend you put everything in writing rather then using a phone call, its more official and can them be brought up should it need to go further.

 

This comes under a civil dispute between your friend and the employer, unfortunately there isn't a way to speed up the situation in getting paid. The only person who can order the employer to pay is a judge, and when cases are taken to a court you need to do this as a last resort and show you have attempted other resolutions before bringing the case to the judge. This includes writing to the employer, and also sending a second letter, called a Letter Before Action before a court summons is issued.

 

Court action is not something I would recommend, so we will try to help you so it doesn't get to that stage. So if you write a letter to the employer, which you send recorded delivery.

 

Mentioning:

 

No written terms of employment, which must include disciplinary, grievance and dismissal procedures. They must also include how much warning notice you are entitled too, and how much holiday you are entitled too. The written terms of employment are required to be provided, if requested no later then two months from the commencement of employment if the employee is there longer than one month.

 

No written contract or terms of employment, which therefore provides no basis for the employer to make deductions or withhold pay from the employee regardless of dismissal for gross misconduct or disciplinary action.

 

You require the outstanding amount to be paid within 14 days, and will be seeking further legal advise and will not hesitate to take this matter further.

 

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I would also advise going to the local CAB who should be able to assist in the matter.


Ex-Retail Manager who is happy to offer helpful advise in many consumer problems based on my retail experience. Any advise I do offer is my opinion and how I understand the law.

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Sorry, missed that in his post Blitz

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Request in writing any pay/holiday owed and for a copy of your contract,send recorded delivery and give them 7 days to respond.

If they don't budge then put in a claim for monies owed to the Employment Tribunal Service...you can download the form on-line and is very easy to do.Let the employer know you intend to do this.

In my opinion its not for the employer to decide how much they want to deduct from whats they think is owed,that would be a courts decision if its taken that far.

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Don't agree about asking for a contract now, Greendollar.

It's after the fact. He'll be in a stronger position if T&C's are implied.

 

The former employer could include terms granting them the right to make deductions in this circumstance.

 

I know that ERA s.13 requires the employee to have given their signed agreement, but it might just put the employer in a stronger position.

 

You never know how ET / CC Judges will reason.

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We will go to our local CAB tomorrow morning and I will post what we've been told.

 

Thank you everyone for the advice so far.

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What Blitz advised in post #8 was spot on. That's the way to go here.

I'd get a letter in straight away.

There's no magic wand here, if the employer isn't paying up then it will probably take several months to get the money.

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Good point about the contract but no employer will want the hassle of dealing with an E/T claim.

As I see it if you've worked the hours and are owed the holiday they have to pay.

The issue of theft and the value of the alledged theft are a completely different issue.

 

In my case the money owed to me was deposited in my account the day the company received my E/T claim.

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All the employer has to do is fill out the ET response form and they can drag it probably all the way to the morning of the hearing. Then back down.

The OP could go to the county court and put in a request for summary judgement. Wouldn't be confident though.

 

Who knows, they might pay up straight away. As you said.

They're probably feeling 'a bit cross' though.

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Basically we were told what we already read in your posts. He sent a letter today requesting the outstanding amount paid and the T&C as well. He also mentioned being ready to take this matter further. Hoping the boss will pay up just to avoid the hassle.

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recorded delivery? if not prepare to be ignored

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Yes he sent it by recorded delivery as you guys suggested.

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Good ,rember to keep a copy and proof of posting,next download or write to E/T Service and get a claims form,your not claiming for unfair dismissal but there is a section for claiming for pay and holiday owed,if you get no response send it.

Elpulpo is correct, the firm can drag it out if it wishes , my guess is that they would deal with it sooner rather than later.

Edited by greendollar

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Have you seen the programm on BBC about care homes and how badly they are managed and the owners are not making huge profits now due to the credit crunch. You will from the clip that one very bad care home took away food from the staff and they had to work 12 hrs without food.

 

These owners of the care homes had about 12 of them on the go and were talking about taking over some more. Greedy, Greedy to say the least. Treating staff so badly had a very bad effect on the poor people with dementia and this is scandalous in this day and age. :-x:confused::?::?:

 

BBC - BBC Two Programmes - Can Gerry Robinson Fix Dementia Care Homes?

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Yes ,I did see it.....poorly paid staff working 12 hr shifts having their free meal taken away to save money ,all because the owner didn't want to sell his 4 million pound mansion,the care homes were so **** he couldn't get people in there,staff moral so low it was effecting the quality life for the poor pensioners who have to see out their days in these places...and the charge for plonking an old age pensioner in a chair infront of a TV....between £400 and £700 a WEEK!...shocking

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2nd letter completely ignored. We sent both by recorded delivery and their status is undelivered. He was sending few other letters by the same postal service and all of them were delivered. I guess the application for ET is the next step?

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You could try hand delivering the letter but would most probably be ignored again.Get the claims form from the E/T and claim,I doubt very much that they'll ignore their mail.

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My friend advised us to ask her friend solicitor for advice and now we're working on a letter to the employer that will be sent from solicitor's office. I think that feels a bit more official and I hope it will prove beneficial as a proof of trying to solve the issue when/if the claim has to be issued.

 

Luckily there is still about 40 days to file the case against them at ET, so it will give a little bit of time for the employer to respond to this letter, or ignore it like all the others though I hope he will not do that this time.

 

I'll keep posting the progress, thanks again for help guys!

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Wouldn't waste your money on solicitors at this stage,the company have made it clear they have no intention of paying you....a solicitor can't order them to either .... the Employment Tribunal Service can though.

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