Implied breach/Wages withheld

[jcw1952]

Hello, this is my first post so please be patient with me.

 

Back in April this year, I was on the receiving end of verbal abuse by a colleague. I document all 3 incidents and complained to the MD who witnessed 2 of the 3 incidents. The MD said he'd have a word each time.

 

That did not stop the abuse and so I told the MD that it was getting me down and if nothing was done, I’d have to leave. Nothing was done so rather than just leave I enquired about a new position within the trade. However, I did not get anywhere with new employment. Finally I gave "due notice" in writing at the close of business on a Wednesday. I went to work the following day and was told I should go now.

 

I went to C.A.B and called ACAS who both said I had a claim for constructive dismissal and so I went to a solicitor who took my case. Ten weeks later I still have not been paid holiday pay/wages etc; on top of that I received a letter from my solicitors saying they can no longer take my instruction.

 

My ex employer is saying I was feathering my nest with a view to take their clients to my new employer and therefore, I am in breach of implied contract (these accusations are false).

 

The matter is going before ELT in the not too distant future and my solicitor has now said it's a 50/50 decision on how that will go. I have now found employment in the same field but, only if my potential new employer is not going to be involved in a law suit in the foreseeable future.

 

All I ever wanted was the monies I was owed but it’s out of hand because I was presumably ill advice in the first place. Does anyone have any experience in this and perhaps let me know what to expect?............thanks in advance

 

Jcw1952

 

PS: I did not have a written contract.

Edited July 26, 2010 by jcw1952
on advice

[honeybee13]

Hello and welcome to the forum. We like nice manners here, thank you .

 

For those like myself who are not in the first flush of youth, it would be very helpful if you could edit your message and put a few paragraphs in it please. This makes it much easier to read. In your case, you're asking a few different questions and they've come out all run together on your post.

 

We may have some more questions for you in order to answer all your questions, I hope that's OK with you.

 

With regard to the outstanding money, I think you could try a letter before action, although I would like one of our caggers with more experience of this to confirm.

 

So to confirm I've understood, you're claiming constructive dismissal because of workplace harassment or bullying?

 

Why did they send you home the day after you resigned, do you know?

 

I can see why ACAS and CAB thought you might have a case for constructive dismissal. While you were with the company, did you raise an official grievance over your treatment?

 

As regards poaching clients from your ex-employer, is this likely to happen? I gather you haven't started the new job yet. I don't see how the new company can be involved if nothing is happening.

 

I have no experience of ETs personally, if that's what you're asking what to expect about, but other people here do know. Does you ex-employer have legal representation?

 

My best, HB

[jcw1952]

Hello Honeybee13

Thanks for your responce and advice. My ex solicitor has written a LBA but to no avail.

 

I am claiming constuctive dismissal over bullying.

 

My position in sales prompted them to send me home... i'm guessing as they did'nt say why.

 

I am not at work yet but my ex-employer seems to think i am and have been since the day i left. Rumours had been floating around that I am working but they are toally un-founded.

 

Thanks again Honeybee13

Edited July 26, 2010 by jcw1952

[honeybee13]

Hello again. I'm sure some more regular caggers will be along with more comments.

 

If your employer hasn't paid up, then an ET is one avenue to ask for what you're owed and they can look at your other grievances as well. I'm assuming none of this was resolved while you worked there or just after you left?

 

Are you planning to represent yourself at the ET? I wasn't quite sure what you meant about your lawyer. Quite a few people from the forum have done this.

 

I see a couple of other caggers are hovering, hopefully they will have more comments for you.

 

My best, HB

[mariefab]

Constructive dismissal is notoriously difficult to win. Unless you have considerable evidence of the bullying and of your employers failure to deal with it you are unlikely to succeed.

 

However, as long as you ticked 'holiday pay' and 'arrears of pay' at section 5.1d of the ET1, you ought to be able to recover the monies that you are owed.

[jcw1952]

My solicitor pulled out because she thought i had a less than 51% chance of winning a claim for CD (after saying i had a better than average chance).

 

Nothing had been resolved when employed or after leaving.

 

So now i will bew representing myself. All i ever wanted was the monies owed to me.

 

It had never entered my mind to claim for CD until i contacted ACAS and my solicitor mentioned it.

 

And yes mariefab, i did tick the boxes.

 

Thanks Honeybee & mariefab, your coments are appreciated.

 

PS: It would be interesting to hear from other members that have represented themselves at ET

Edited July 28, 2010 by jcw1952
after thought

[mariefab]

Questions for you:

 

1. Is the upcoming Tribunal hearing a full hearing, a case management discussion or a pre-hearing review?

 

2. Do you and your former employer agree the date that your employment ended on the ET1 and ET3?

 

3. Do your payslips show when holiday is paid?

 

4. What was your holiday year (Jan-Dec, Apr-Mar etc)?

 

5. Did they pay you anything after you left?

[jcw1952]

Hello mariefab

 

I believe the hearing to be a pre- hearing (i'll have to check that out as only just got paperwork back from ex-solicitor)

 

I have not had a copy of anything that states my ex-employers agree or don't agree.

 

Holiday is a shut down period for all in the first 2 weeks of August. Payment is usually made weekly within those weeks.

 

I assume that holiday is calculated Dec-Nov (which co-insides with thier financial year.

 

Nothing was paid to me when i left on the 13th May but I got a payslip recieved early June, dated 31 May. (8 days is what the payslip calculates too).

 

But no pay recieved to date.

 

Thanks for your interest

Edited July 28, 2010 by jcw1952
bad grammar and spelling

[mariefab]

I believe the hearing to be a pre- hearing (i'll have to check that out as only just got paperwork back from ex-solicitor)

 

 

OK, have a look at the paperwork because it's likely that there will be an indication of what is to be decided at the pre-hearing review.

It's possible that whether you have sufficient evidence to progress with the constructive dismissal part of your claim will be discussed. If this is the case and you don't feel confident continuing that part of your claim you could decide to withdraw it at that stage and just continue to claim your unpaid wages and holiday pay.

 

I have not had a copy of anything that states my ex-employers agree or don't agree.

 

In section 3 of the employers response form (ET3) it will state whether or not they agree with the date that you say your employment ended.

holiday is a shut down period for all in the first 2 weeks of August. Payment is usually made weekly within those weeks.

 

Did it usually state holiday pay on your payslips?

What about the rest of your holidays?

How many days per week did you work?

 

Nothing was paid to me when i left on the 13th May but I got a payslip recieved early June, dated 31 May. (8 days is what the payslip calculates too).

 

But no pay recieved to date.

 

So, they sent you a payslip but not the money?

How many days of unpaid wages do they owe you?

[jcw1952]

OK, have a look at the paperwork because it's likely that there will be an indication of what is to be decided at the pre-hearing review.

I will certainly go over the paperwork when i recieve it.

 

Did it usually state holiday pay on your payslips?

What about the rest of your holidays?

How many days per week did you work?

No, It never did state "holiday pay". I worked a 5 day week entiling me to 28 days i believe. Bank holidays are included in the 28 allowed days.

 

So, they sent you a payslip but not the money?

How many days of unpaid wages do they owe you?

Holiday money, 1 weeks pay in lieu for working a week in hand some 6 years ago plus 6 weeks for not letting me work my notice. (a week for every year as stated on the direct.gov website).

 

Thanks for you contribution and time mariefab.