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creditcruncha

Are you 'paid' when cheque is recieved or funds cleared?

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For purposes of determining the date one was last paid (ie for a Tribunal claim deadline), if the last wages were paid by cheque, is the date of payment considered to be when you recieved the cheque or when the funds cleared?

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I would've thought when you received the cheque .......................unless of course it bounced


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I personally think it is when the funds are cleared because otherwise the cheque is just a worthless piece of paper. The value of your work is not realised until the actual funds are available to you.

 

In the old days when paid in cash, that happened when you actually physically received your wage packet. Now electronically that passing of the right to the property (money) doesn't come into force until cleared because the owner of the cheque has the ability to stop the payment at any time until cleared.

 

Of course I may be wrong.

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For purposes of determining the date one was last paid (ie for a Tribunal claim deadline), if the last wages were paid by cheque, is the date of payment considered to be when you recieved the cheque or when the funds cleared?

 

Perahps the more applicable question is - why are you asking??? Because the date that a last payment was made is not grounds for determining tribunal jurisdiction in relation to time limits anyway! If, by "last wages" you mean "final wage", and the jurisdictional question is "what is the point from which the three mmonths less a day is calculated" the answer would be, from the "effective date of termination", which is the last day upon which you were employed under contract (including any notice period, whether worked or not, unless termination was immediate i.e. without notice; or without notice and pay in lieu of notice). Of course, there are many different jurisdictions and how dates are calculated depends on what you are claiming for.

 

So what is the question you are really asking?


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I am a barrister specialising in employment law, and only represent employees. My advice on employment issues is advice - not legal opinion - and is based only on the facts you provide. If you want an accurate assessment of your case and prospects, you should get legal opinion from a lawyer - not a public forum. Anything I tell you is for guidance only, and is based on my experience of the law in the context of what details you provide.

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I agree with SarEl that you need to say why you are taking action through an ET.

 

The obvious reason for asking why the date of payment would be relevant would be for a complaint of an Unlawful Deduction. If you are taking action for an Unlawful Deduction then the claim should be made within three months of the date on which the pay was due to be received, or within three months of the last in a series of deductions. You should have an official 'Payday' so the complaint should be made within three months of that date irrespective of the type of payment.


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Does this mean that an employee has only 3 months to recover the unlawful deductions from employer and if employers has over paid and is not discovered for a number of years down the line, would it be lawful for the employer to chase the employee for that money back. Or can an employee make a claim though the small claim courts for the unlawful deductions after 3 months after the 3 months deadline for the ET.:?:

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Does this mean that an employee has only 3 months to recover the unlawful deductions from employer and if employers has over paid and is not discovered for a number of years down the line, would it be lawful for the employer to chase the employee for that money back. Or can an employee make a claim though the small claim courts for the unlawful deductions after 3 months after the 3 months deadline for the ET.:?:

 

Sometimes yes and sometimes no. A small claims court cannot arbitrate on whether or not a deduction was unlawful, so if there has to be a decision as to whether the deduction was unlawful or not - no they cannot. The small claims court only has jurisdiction over debts, not over whether debts exist in employment law terms.


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I am a barrister specialising in employment law, and only represent employees. My advice on employment issues is advice - not legal opinion - and is based only on the facts you provide. If you want an accurate assessment of your case and prospects, you should get legal opinion from a lawyer - not a public forum. Anything I tell you is for guidance only, and is based on my experience of the law in the context of what details you provide.

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Sometimes yes and sometimes no. A small claims court cannot arbitrate on whether or not a deduction was unlawful, so if there has to be a decision as to whether the deduction was unlawful or not - no they cannot. The small claims court only has jurisdiction over debts, not over whether debts exist in employment law terms.

 

Although depending on the nature and complexity of the Unlawful Deduction one could pursue a breach of contract claim through the County Court without reference to the ET. If it was a matter of A works for B for a sum of money agreed by contract and B has failed to pay the money due, then the fact of whether a deduction is unlawful is irrelevant and could be chased as a debt. In that case the Claimant could also surely claim for costs and interest.

 

Depends how sure you are of your case, the amount owed and the nature of the underpayment.


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Although depending on the nature and complexity of the Unlawful Deduction one could pursue a breach of contract claim through the County Court without reference to the ET. If it was a matter of A works for B for a sum of money agreed by contract and B has failed to pay the money due, then the fact of whether a deduction is unlawful is irrelevant and could be chased as a debt. In that case the Claimant could also surely claim for costs and interest.

 

Depends how sure you are of your case, the amount owed and the nature of the underpayment.

 

Yes. But the nature of the underpayment is crucial, so it would still be maybe yes, and maybe no. If an employer failed to pay a wage, or holiday pay owed, or something of that nature, then it would be a clear contractual breach and the County Court could deal with it - as could the small claims court. The problem arises if the claim comes from one of the more complex areas of deductions - such as till shortages, training and so on - where the application of employment law is required, because County Courts do not have the power (or skills) to rule on such matters.


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I am a barrister specialising in employment law, and only represent employees. My advice on employment issues is advice - not legal opinion - and is based only on the facts you provide. If you want an accurate assessment of your case and prospects, you should get legal opinion from a lawyer - not a public forum. Anything I tell you is for guidance only, and is based on my experience of the law in the context of what details you provide.

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