The employer didn't pay for one day.

[elpulpo]

What?

[pugilist]

What?

No one gave any comments about my draft. May be you could give me a hand and make mistakes corrected?

[honeybee13]

Hello Pugilist. I didn't realise what you wanted when you posted your draft letter because you didn't say anything else.

 

'May be you could give me a hand and make mistakes corrected? '

 

Do you mean legal points please?

 

HB

Edited August 14, 2010 by honeybee13
Typo

[pugilist]

honeybee, grammar and legal please

[honeybee13]

Dear xxx

 

Suggest you add a heading in bold about what this concerns, if you haven't already

 

in my previous letter to you I informed you that the deduction was unlawful and why.

 

Now It looks like you are aware of it but try to explain me why you made this unlawful deduction.

 

Now it looks as though you are aware of this but are trying to explain why you made this unlawful deduction.

 

Here I once againe attract your attention to The Employments Rights Act , s13 according to which you violated several items of the Act: Here once again I would direct your attention to The Employment Rights Act, [year] s13. According to the Act, you have violated several sections, namely x, x and x.

 

* The deduction was not required or authorised by statute; (may be I shouldn't include this point?)

 

I think it should be authorised by the employee, hope someone else will comment on that.

 

* The deduction was not authorised by a relevant provision of the worker's contract of employment;

 

* I have not previously given my written agreement or consent to the deduction being made.

 

This time I advise you not to ignore the law and pay the amount due.

 

I hope you understand this time that a legal course of action to recover the day's pay will render you liable to pay further sums in respect of interests interest, court fees and costs.

 

But I just want you to give me my money back.

 

I would just like to be remunerated for the full number of days I worked.

 

That's why as a gesture of good will I give you another 14 days to pay the amount due.

 

As a gesture of good will, I intend to wait seven? days for payment in full. If this is not forthcoming, I shall have no option but to take legal action.

 

Yours faithfully

 

You don't have to agree with me, but I wouldn't be waiting 2 weeks myself, given how long it's been.

 

Does that get this started for you? I don't know much about the legal position, hopefully some of legal seagulls will be along later.

 

HB

Edited August 15, 2010 by honeybee13
Clarity.

[honeybee13]

I swear I didn't type 'seagulls'. How did that happen? [confused smiley thing. Where are they?]

 

HB

[Thailand]

I swear I didn't type 'seagulls'. How did that happen? [confused smiley thing. Where are they?]

 

HB

 

Looks like the forum software won't let us post the name of a 'rival' website, what with the history with it (libel).

 

So it changes beegles (can't spell it corectly because not allowed!) to seagulls.

[Thailand]

I think you have to click 'reply' to get the smileys, or the quick reply box won't offer them (unless typed in manually using the colon and brackets etc...)

[honeybee13]

Thank you for the information, Thailand. HB

[pugilist]

Honeybee13,

 

I forgot to give any answer to you because my friend had sorted this matter out already.

 

Thank you very much anyway!

 

Now I'm going to create another thread concerning my own problem with employer.

[pugilist]

Good evening everyone!

The situation is as follows: I've been working with a decorating company for about couple of months as a painter and decorator. I didn't sign any contract with them, and I didn't even pass induction when I first came on that construction site, and I didn' receive any payslips.

Last saturday our forman told us to paint the windows in the basement without any preparations for the painting: without filling any holes or craks, and even without covering the windows with undercoat. He said "just gloss them and that's it" and he went home. We did exactly as he said and went home. That was the last day on that site because nothing left to be painted there. We've been working for a different company since monday and we were sure that we would receive our cheques at the end of this week. Couple of houres ago that forman phoned us and told that the site manager called him and told him that the job we had done on saturday was unacceptable and bla bla bla and that we must come this saturday and do everything properly and for free...

I believe this is completely immoral and illegal to act like our forman. What do you think is the best way to do in this situation?

I think the best way is to come on site, do what he says, collect the cheque(the cheque should be given to me the same day) and only afterwards act.

I would really appreciate any ideas concerning this matter.

 

Thank you.

[honeybee13]

Nice to see you again. You will keep us updated this time, won't you?

[SarEl]

Even assuming that you are an employee (because a lot of people in your position are contractors / self-employed) then there isn't much you can do - not if you want to keep your job. But you have been told the terms of arriving at work on Saturday - you are working for free - so you either do something about it now, don't turn up, or you have accepted the terms and can't really do anything about it later. So you can submit a grievance (if you are an employee) or you can refuse to work unpaid - or both - but that is about all. And given that if you are an employee you still have only two months employment, I would firmly expect that you won't be in employment by the end of next week. Sorry - but that is the reality of the situation and I couldn't pretend otherwise.

[pugilist]

Even assuming that you are an employee (because a lot of people in your position are contractors / self-employed) then there isn't much you can do - not if you want to keep your job.

I think I'm self employed. I'll give the employer my NIN and UTR, he must pay taxes for me. Well, to be honest I don't know if I am an employee or a self-employed.

I'm not sure that I want to keep such job.

 

But you have been told the terms of arriving at work on Saturday - you are working for free - so you either do something about it now, don't turn up, or you have accepted the terms and can't really do anything about it later.

 

The thing is that I was told the terms of arriving at work over the phone. What I want to do is to turn up, wark all day long, collect the money they owe me, and after that I'm going to demand my money for saturday and I'm going to pretend as if I have never bbeen told the terms of arriving at work on Saturday. I think such trick can protect me from been cheated.

 

So you can submit a grievance (if you are an employee) or you can refuse to work unpaid - or both - but that is about all. And given that if you are an employee you still have only two months employment, I would firmly expect that you won't be in employment by the end of next week. Sorry - but that is the reality of the situation and I couldn't pretend otherwise.

 

I do expect that I won't be in employement with that company after saturday. But I'm going to fight for truth, I won't let them cheat me out of my money. So, taking in consideration that they have no evidence that I have accepted the terms of arrival on Saturday, what do you think if I send them a Letter before action on monday?

Here is a draft:

 

letter before action

 

 

Dear XXX(name of the company) administration, or Dear director or whatever,

 

On the 27th of November, at the end of the working day our forman told me and my friend that the company was not going to pay us one day's wages because the quality of the job we performed last Saturday(20.11.2010) was not acceptable. I want to let you know that we did exactly what the forman told us to do, we just followed his instructions, otherwise we would never start painting windows without proper preparations. Thus, we believe that not paying us a day's wages is unfair.

 

I remind you that such retention is construed as unlawful deduction of wages, and is contrary to The Employment Rights Act 1996, s13. Consequently, you have 14 days to pay the amount due.

 

Should you fail to do so, I will pursue a legal course of action to recover the day's pay. This will render you liable to pay further sums in respect of interests, court fees and costs.

Yours sincerely.

 

My name

[pugilist]

Nice to see you again. You will keep us updated this time, won't you?

 

Nice to see you too! Of course I will:)

Here's the link to my new story http://www.consumeractiongroup.co.uk/forum/showthread.php?285288-Employer-wants-me-to-work-one-day-for-free!!&p=3209844#post3209844 ))))

[SarEl]

What I think is that you decided to do this and were asking for people here to say it would work. Sorry, but that isn't going to happen.

 

You don't even know if you are an employee or not - the ERA only applies to employees! So you can't claim rights that you don't know you even have. The employer MAY NOT pay taxes for you - he may not even be LIABLE to PAYE if you aren't employees. You are running away making all sorts of assumptions here that you do not even know the right answers to.

 

You say that they have no proof of the fact that you knew these terms befiore turning up? Well that MAY be true - but you actually don't know that for a fact. And so what? YOU can't prove either that the foreman told you to do a shoddy piece of work that needs putting right. Where is your proof of this? Yes, it is getting to be one person's word against anothers - but that is where legal action gets very dodgy. You have absolutely no guarantee that the company will not simply entirely ignore your lba and tell you to go to hell - and then you are stuck POSSIBLY taking legal action with no eveidence yourself either, and not even a clue as to your employment status.

 

The law is not about "tricks" to prevent you from being cheated, and it isn't going to care about what tricks you or the company play. The correct thing to do is to either refuse to work for free - and get everything in writing - or to raise a grievance if you are an employee and able to do so. You should be establishing exactly what the nature and terms of your contract are, and acting in an above board way - otherwise you are no different from the company, and your clever strategy may blow up in your face. If you don't care about future work with them, then act above board and ensure that you are in the right.

[pugilist]

What I think is that you decided to do this and were asking for people here to say it would work. Sorry, but that isn't going to happen.

 

I haven't decided yet what to do. That's why I created this thread.

 

You don't even know if you are an employee or not - the ERA only applies to employees! So you can't claim rights that you don't know you even have.

I am self employed or an employee. ERA guarantees rights to both.

 

The employer MAY NOT pay taxes for you - he may not even be LIABLE to PAYE if you aren't employees. You are running away making all sorts of assumptions here that you do not even know the right answers to.

He IS liable and he promised to pay the taxes and to give us payslips. The guys who work for him for couple of years say that he pays taxes for them.

 

You say that they have no proof of the fact that you knew these terms befiore turning up? Well that MAY be true - but you actually don't know that for a fact.

It IS true, because that drunkard forman phoned to us and told us if we didn't turn up on Saturday we wouldn't get our cheques at all(they owe us 1 week wages).

 

And so what? YOU can't prove either that the foreman told you to do a shoddy piece of work that needs putting right. Where is your proof of this? Yes, it is getting to be one person's word against anothers - but that is where legal action gets very dodgy.

It is getting to be two persons' word against anothers.

 

You have absolutely no guarantee that the company will not simply entirely ignore your lba and tell you to go to hell - and then you are stuck POSSIBLY taking legal action with no eveidence yourself either, and not even a clue as to your employment status.

If the company ignores my lba I'll definetely bring an action against them. I've got witnesses who will give evidence in my favour. Do you understand what is s13 in The Employment Rights Act 1996? Have you got any idea about it?? By the way, when I applied for my CIS card I registered as a self-employed. So I've got some clue about my employment status, but it looks like you don't know what s13 is about...

 

The law is not about "tricks" to prevent you from being cheated, and it isn't going to care about what tricks you or the company play.

Oh really? Who told you that I was going to tell about tricks while in court? I've got facts and witnesses to present in court.

 

The correct thing to do is to either refuse to work for free - and get everything in writing - or to raise a grievance if you are an employee and able to do so.

Are you trying to say that if I am not employee, I can't even raise a grievance?

 

You should be establishing exactly what the nature and terms of your contract are, and acting in an above board way - otherwise you are no different from the company, and your clever strategy may blow up in your face.

As I said before, there's no contract at all - do you know what does that mean? My "clever" strategy is the only strategy I believe is reasonable in this situation. I created this thread in attempt to find out if anyone can suggest another effective way out.

 

If you don't care about future work with them, then act above board and ensure that you are in the right.

When dealing with dishonest people it is very dangerous to be on the square. If the foreman lies that he didn't tell us to perform the job that way, why can't we lie that he didn't tell us that we will work for free on Saturday?

[SarEl]

As an employment law barrister - yes I know exactly what the ERA is for - and it is for EMPLOYEES and NOT self-employed people. So whatever you say, you do not know it applies if you do not even know WHETHER you are an employee - which is what you have said.

 

Oh, he promised to pay the taxes and he promised you payslips. What evidence do you have of this promise, and where are your wageslips and the evidence that taxes have been paid. If you are self-employed, which we have still not established, the company are not liable to pay your taxes and they are not required to provide payslips. The difference between employed and self-employed is enormous - and you don't know which you are.

 

Two people's word against one is not evidence and it carries no weight as such. Of course two people may ALLEGE that someone owes them money, but that does not in law make them correct that it is owed or that they are telling the truth. If this was the test that courts applied all it would require is for me and my mate to say you owe us money - and you would owe it. So I say again, the company have a piece of work which is substandard and which you did; the foreman denies he instructed you to do the work in a sloppy fashion - and what is to say that the court will believe you and not them?

 

I certainly know what "there is no contract" means you offensive little twit. But since I am a lawyer I also know that IN LAW there is no such thing as "no contract" - if you carry out work or services for someone then there is ALWAYS a contract and there are methods of establishing the terms of a contract which has no WRITTEN terms.

 

And now you can rely on someone else - or your "clever little strategy" of lying through your teeth - to help you out of this because you are not interested in facts or honesty or anything else, and there appears to be little evidence that you are even telling the truth here. After all - we only have your word for it. Just the same as the company only has your word for what was said by the foreman.

[honeybee13]

Pugilist, you're living up to your name . To help the caggers left now SarEl has deserted you, we need to know if you're employed or not, and it might help you as well. This is from the directgov website, employment section. There's a lot more than I'm copying and pasting, and a helpline you can ring as well, if you have a look.

 

HB

 

Basic checks to help you decide

 

You can usually work out your employment status by asking a few straightforward questions.

You are probably self-employed if you:

 

• run your own business and take responsibility for its success or failure
  
• have several customers at the same time
  
• can decide how, when and where you do your work
  
• are free to hire other people to do the work for you or help you at your own expense
  
• provide the main items of equipment to do your work
  

 

You are probably employed if you:

 

• have to do the work yourself
  
• work for one person at a time, who is in charge of what you do and takes on the risks of the business
  
• can be told how, when and where you do your work
  
• have to work a set amount of hours
  
• are paid a regular amount according to the hours you work, and get paid for working overtime - even if you do casual or part-time work, you can still be employed
  

[Planner]

SarEl. While the quality of your advice is excellent, befitting your position, you are, in my opinion, bordering on the 'rude' in some of your responses.

Keep in mind that this is anonymous forum and you shouldn’t take personal offence, which you do, to someone who queries your knowledge or professional standing. You are posting under a pseudonym and are responded to by 'people' using a pseudonym – it isn’t personal. Many posters are under stress given there circumstances (whether legally justified or not) that have prompted them to post on here.

It would be a shame to see the value of your advice diminished by what many may see as a ‘prickly’ response.

[pugilist]

Pugilist, you're living up to your name . To help the caggers left now SarEl has deserted you, we need to know if you're employed or not, and it might help you as well. This is from the directgov website, employment section. There's a lot more than I'm copying and pasting, and a helpline you can ring as well, if you have a look.

 

HB

 

Basic checks to help you decide

 

You can usually work out your employment status by asking a few straightforward questions.

You are probably self-employed if you:

 

• run your own business and take responsibility for its success or failure
  
• have several customers at the same time
  
• can decide how, when and where you do your work
  
• are free to hire other people to do the work for you or help you at your own expense
  
• provide the main items of equipment to do your work
  

 

You are probably employed if you:

 

• have to do the work yourself
  
• work for one person at a time, who is in charge of what you do and takes on the risks of the business
  
• can be told how, when and where you do your work
  
• have to work a set amount of hours
  
• are paid a regular amount according to the hours you work, and get paid for working overtime - even if you do casual or part-time work, you can still be employed
  

 

Thank you very much, honeybee13! Now I know that I am 100% employee.

[pugilist]

As an employment law barrister - yes I know exactly what the ERA is for - and it is for EMPLOYEES and NOT self-employed people. So whatever you say, you do not know it applies if you do not even know WHETHER you are an employee - which is what you have said.

)))Oh, now I see - as an employment law barrister you are not used to give free advice, that's why you try to make everything look so complicated.

Now we know(thanks to honeybee13) that I am an employee

 

Oh, he promised to pay the taxes and he promised you payslips. What evidence do you have of this promise, and where are your wageslips and the evidence that taxes have been paid. If you are self-employed, which we have still not established, the company are not liable to pay your taxes and they are not required to provide payslips. The difference between employed and self-employed is enormous - and you don't know which you are.

 

Now as we established my employement status, we know that he must provide me with papers(payslips) showing that he pays my taxes. Of course I have no written evidence that he promised to pay my taxes and that he promised me payslips, but it is not my fault, because he he didn't offer me to sign any written agreement.

 

Two people's word against one is not evidence and it carries no weight as such. Of course two people may ALLEGE that someone owes them money, but that does not in law make them correct that it is owed or that they are telling the truth.

Exactly - two people can ALLEGE that someone owes them money and then these two people can confirm this assumption(support this allegation) with providing the court with facts.

 

If this was the test that courts applied all it would require is for me and my mate to say you owe us money - and you would owe it.

That would be ridiculous and I didn't mean that.

 

So I say again, the company have a piece of work which is substandard and which you did; the foreman denies he instructed you to do the work in a sloppy fashion - and what is to say that the court will believe you and not them?

I'll show that the company has been a little tricky for the whole period I worked for it: they never paid money in time, never offered me to sign a contract, never gave me any payslips, didn't induct me before letting me work on site.

By the way, one foreman was fired from that site around a month ago exactly because he told everyone to do substandart work, but in that case everyone started doing everything all over again properly and they were paid for the job.

 

I certainly know what "there is no contract" means you offensive little twit.

I meant written agreement - there is no written agreement btw me and the company

 

But since I am a lawyer I also know that IN LAW there is no such thing as "no contract" - if you carry out work or services for someone then there is ALWAYS a contract and there are methods of establishing the terms of a contract which has no WRITTEN terms.

That's true, but in this case I can provide some witnesses who will speak out in my favour.

 

And now you can rely on someone else - or your "clever little strategy" of lying through your teeth - to help you out of this because you are not interested in facts or honesty or anything else, and there appears to be little evidence that you are even telling the truth here. After all - we only have your word for it. Just the same as the company only has your word for what was said by the foreman.

 

The company have been witnessing the superb quality of the job that I've been performing during the whole period of my work with them. As for the "little evidence that you are even telling the truth here" I can tell you that there appears that there exists no reason at all to say things of this kind about me.

You on the contrary appears to be a little fibber as most of the lawyers are.

 

Another reason why I alleged that you didn't know what s13 of the ERA was about: S13 of the Employment Rights Act 1996 clearly states that an employer may not make deductions from the wages of an employed worker unless the worker has previously given his or her written agreement or consent to the deduction being made.

[pugilist]

Good morning everyone!

 

My friend has been working for one employer since october 2010. He works as a painter and decorator, self-employed. He wants to know if his employer has legal right to dismiss him any time without giving at least a week's notice.

 

I know that it would be impossible if my friend was an employee, but he is a self-employed, and I we'd like to know exactly what the law says.

 

Thank you in advance.

[BankFodder]

if you are self-employed then you are working relationship is governed merely by the normal rules of contract law.

 

I suppose that most situations involving painter and decorator's probably don't include a written contract. If there is a written contract, then you would have to see what the contract says about termination.

 

If there is now written contract then I think you would have to look at the practice of the self-employment relationship over a period of time. For instance, if you saw that the independent contractor (your painter and decorator friend) had been working for a particular company for several years and had received regular jobs from them – and that in fact that painter and decorator pretty well want the nobody else, then you might them to say anything company some obligations to terminate the contract with notice. It might even be possible that a person can in theory are self-employed, has been working on such a regular way and for such a substantial number of time for the same employer, that eventually should be treated as employed.

 

I think that the first thing that hits me about your friend is that he has only been employed since October last year. This means that he has only been employed for a maximum of six months – and maybe less than that. If he has been fully employed it's one of those weeks – meaning 30 or so hours per week and that that has been his sole work, and if he has been paid for the time that he has put in, rather than a fixed amount for each job, then you could have an argument for saying that your friend was entitled to receive seven days pay. it might be difficult to say that he should be entitled to any more.

 

It will all depend on the circumstances. If your friend has been paid varying amounts based on each particular job – for instance, decorate that house – £1000, decorate that flat – £500 etc, then this would be the situation where it would be much more difficult to claim that there was some kind of notice clause in the contract.

 

If on the other hand your friend was simply being paid to work 40 hours per week on whatever decorating projects employer decided, then it could be a good argument to say that there was a notice period.

 

Also, if there was no written contract, and if your friend was working regular hours for a fixed regular payment, they might even have been an argument to suggest that he was in reality employed rather than self-employed and that the self-employment relationship was a sham which was intended to defraud the tax and social security.

 

In this case, because he has worked less than a year, your friend would have no employment rights. On the other hand, the employer would be liable to pay your friends tax and National Insurance contributions. Of course your friend would also be liable to pay his own National Insurance contribution.. Do you know if your friend is formally self-employed? Is he actually paying tax and easy actually paying a self-employed National Insurance rate?

 

You need to take all of these kinds of things into consideration. It is not a simple matter with the simple answer.

 

It could be possible to put pressure on the employer to pay seven days in lieu of notice, or to give him an extra seven days work.

[pugilist]

if you are self-employed then you are working relationship is governed merely by the normal rules of contract law.

 

I suppose that most situations involving painter and decorator's probably don't include a written contract. If there is a written contract, then you would have to see what the contract says about termination.

 

If there is now written contract then I think you would have to look at the practice of the self-employment relationship over a period of time. For instance, if you saw that the independent contractor (your painter and decorator friend) had been working for a particular company for several years and had received regular jobs from them – and that in fact that painter and decorator pretty well want the nobody else, then you might them to say anything company some obligations to terminate the contract with notice. It might even be possible that a person can in theory are self-employed, has been working on such a regular way and for such a substantial number of time for the same employer, that eventually should be treated as employed.

 

I think that the first thing that hits me about your friend is that he has only been employed since October last year. This means that he has only been employed for a maximum of six months – and maybe less than that. If he has been fully employed it's one of those weeks – meaning 30 or so hours per week and that that has been his sole work, and if he has been paid for the time that he has put in, rather than a fixed amount for each job, then you could have an argument for saying that your friend was entitled to receive seven days pay. it might be difficult to say that he should be entitled to any more.

 

It will all depend on the circumstances. If your friend has been paid varying amounts based on each particular job – for instance, decorate that house – £1000, decorate that flat – £500 etc, then this would be the situation where it would be much more difficult to claim that there was some kind of notice clause in the contract.

 

If on the other hand your friend was simply being paid to work 40 hours per week on whatever decorating projects employer decided, then it could be a good argument to say that there was a notice period.

 

Also, if there was no written contract, and if your friend was working regular hours for a fixed regular payment, they might even have been an argument to suggest that he was in reality employed rather than self-employed and that the self-employment relationship was a sham which was intended to defraud the tax and social security.

 

In this case, because he has worked less than a year, your friend would have no employment rights. On the other hand, the employer would be liable to pay your friends tax and National Insurance contributions. Of course your friend would also be liable to pay his own National Insurance contribution.. Do you know if your friend is formally self-employed? Is he actually paying tax and easy actually paying a self-employed National Insurance rate?

 

You need to take all of these kinds of things into consideration. It is not a simple matter with the simple answer.

 

It could be possible to put pressure on the employer to pay seven days in lieu of notice, or to give him an extra seven days work.

Thank you very much for such a big answer! My friend work every day and somtimes he works double shift. His employer pays him for the hours he works and not for the exact job done, I mean he works from 8 am till 16:30 and is payed 90 pounds beefore tax, if he stays for the second shift, night shift, he's got 180 pounds . He has no written contract, is formally self-employed, paying tax and paying a self-employed National Insurance rate?

They work even on weekends sometimes. Last friday the employer told my friend that if he wouldn't come on site on saturday and sunday he will be dismissed and he must not come back on site monday.