Non Payment of Notice *****Won*****

[TMAngel]

Hi there got another problem. Started with a new company on 4 April starting up a new division. Was making inroads into building up contacts, new clients, jobs, cv's etc (recruitment).

 

Had meeting on Tuesday 28 June with my manager who seemed ok with the progress (he got weekly reports anyway). He also assured me my job was safe as they had just terminated someone elses contract to save the company money.

 

Then got called to a meeting a week later on 7 July to discuss my division and said it wasn't bringing in money as quick as they had hoped! So going to have informal discussions for the next 4 weeks to see how things were and then after 4 weeks a more formal discussion.

 

During this time a colleague handed in their notice and left and I also began worrying about my situation and if I would still have a job. I was assured after this meeting (in writing) that I was not under notice.

 

I got offered another role and handed in my contractual one months notice on 19 July which was acknowledged by my manager; they asked to meet me on 22 July and to bring in all equipment. I presumed I would be placed either on garden leave or PILON for one month.

 

Basically at the meeting was told I wouldn't be paid any money for my notice as they didn't want any. I questioned this then got advice and was told they can't do this. Sent a grieveance letter and got a reply confirming they were now terminating my contract as of 22 July for Services No Longer Required and do not need to give me any notice - even though contract states one month. Not paying any outstanding holiday or expenses - not one more penny!

 

So basically not sure what to do as they are saying it is all correct but how can they terminate contract 3 days after I handed in notice??

 

What do I do?

[RachelMD]

If the contract states that they must give you one months notice, then they must do exactly that.

Unless they're claiming that they have grounds for summary dismissal, but handing in your notice hardly constitutes Gross Misconduct.

 

So, they should pay you until the end of the notice you gave.

Letter Before Action time, followed by a little jaunt to the the ET or CC.

You know what to do?

[BankFodder]

you haven't been there long enough to accrue any employment rights but you do have a contract with them and the terms of the contract can be enforced. This means that you can recover the contractual notice period plus any accrued holiday entitlement and if there are any expenses outstanding to you, you can recover them as well.

You should do a statement which outlines in chronological, bullet-pointed form exactly what has happened and then what you consider is due to you – and why.

send the statement as part of a letter to the company and make it clear to them that if you don't have your money at the end of seven days that you will begin an action in the County Court. Do not make the threat unless you really intend to go ahead with it. However, your chances of winning are excellent.

At the expiry of the seventh day when you haven't got exactly what you want, issue the claim. If I were you I would prepare the claim form during the seven days that you are waiting on the basis that the company is not going to see sense and issue it the very minute that your deadline has expired.

I'm quite sure that as soon as they get the court papers and they realise that you are serious, they will pay you your money and your court fee. If they try to haggle with you and offer any partial settlement, I suggest that you refuse it and go for broke. It looks if they have behaved pretty disgracefully towards you.

[Sidewinder]

Absolutely agree. Providing that you have a contract which states a specific period of notice without any qualifying condition then that is legally enforceable. Holiday pay is also a statutory right and they cannot get out of paying it.

 

When BF says that you haven't accrued employment rights, that is only in terms of being able to sue for Unfair Dismissal - you still have legal rights which are actionable. The failure to pay contractual notice is an Unlawful Deduction from wages contrary to Section 13 of the Employment Rights Act, as is the failure to pay outstanding holiday pay.

 

An Employment Tribunal would be the first point of call rather than the County Court as you are still within the three month period in which a claim can be brought. You can fill in an ET1 online, so send a Letter Before Action as described and hit them if they don't respond.

[TMAngel]

Thanks everyone.

Received another response yesterday which basically states no further money will be paid - so taking this as final decision. They now say they made the decision to terminate my contract as Services No Longer Required on 18 July and confirmed this in writing after we met on 22 July. Mmm so why wait 5 days to tell me and why not mention this at all even verbally when I gave my written notice in at the end of the day of 19 July or after it was acknowledged!

 

Also still saying they have taken employment law advice and are well within their rights to not pay me anything.

 

Can anyone guide me as to a standard Letter Before Action? Do I do this before issuing an ET1?

 

Thanks again!

[RachelMD]

Yeh, they've always 'taken employment law advice'.

 

Headline your letter LETTER BEFORE ACTION

 

Set out exactly what you're owed and why.

State that non-payment of wages contravenes Section 13 Employment Rights Act 1996.

Give them 7 days to pay, and say that failing receipt of payment you will instruct a solicitor to make an application to county court to recover the debt and they will be liable for your costs.

(I prefer to say CC in LBA's Sidewinder (before ya start rattling yer arse) because costs are awarded, so there's more incentive to settle ASAP. ET proceedings can be dragged out gratis until the big day.)

 

Send it recorded delivery. Don't get your hopes up.

[TMAngel]

Thanks for speedy reply. Will draft the letter now and head it Letter Before Action. He ?is being quite funny and doubt he will even bother replying to be honest so not getting hopes up.

 

So how do I prepare a CC claim myself? Can I start preparing this now before the end of the 7 days or shall I start the ET claim instead if he doesn't respond after 7 days

[TMAngel]

Also one more question - sorry!

 

They are still insisting that they terminated my contract but this was done 3 days after I handed in my notice to which they acknowledged. As far as I'm concerned I handed my notice in this doesn't make any difference does it? Even if they terminated my contract I'm still entitled to one months notice??

[RachelMD]

Well, as I said, the difference between CC and ET is that at CC you pay a fee to make your claim (the fee depends on the amount you're claiming) and you can routinely make an application for costs.

ET on the other hand, doesn't have a claim fee, nor are costs awarded to either party (to the applicant is almost unheard of, I've never seen it) unless in the opinion of the EJ a party has behaved unreasonably.

 

So, the advantage of the CC is it might well provoke the respondant into coughing up sooner rather than later, as they'll be mindful that the longer the matter goes the more they'll have to pay. Whereas at ET, they can drag ya along right until the day of the hearing and then say, 'OK, there's your money', and they're no worse off. (Though you can claim interest @ 8% p.a from when they should have paid you).

 

How they measure up on time scales, I don't know. ET's used to take an age to come to court, but they seem to be getting fast-tracked as of late.

The one time I made an application to CC it went on for 11 months, though the R was being an utter pillock.

You can make an application for summary judgement at CC, if you feel the R doesn't have a case. That might speed things up a bit.

 

But, yes, to answer your question, you can start preparing the application for either. Then submit it exactly on the deadline.

 

https://www.moneyclaim.gov.uk/web/mcol/welcome

 

http://www.justice.gov.uk/guidance/courts-and-tribunals/tribunals/employment/claims/index.htm

[RachelMD]

Also one more question - sorry!

 

They are still insisting that they terminated my contract but this was done 3 days after I handed in my notice to which they acknowledged. As far as I'm concerned I handed my notice in this doesn't make any difference does it? Even if they terminated my contract I'm still entitled to one months notice??

You'd be entitled to pay up to the date of the notice you gave, not one month from the date they terminated.

So one month from the 19th, not from the 22nd.

[Sidewinder]

(I prefer to say CC in LBA's Sidewinder (before ya start rattling yer arse) because costs are awarded, so there's more incentive to settle ASAP. ET proceedings can be dragged out gratis until the big day.)

 

A good point, well made. CC may well prove more of a worry to the employer than an ET. I suggested Tribunal on the grounds of cost, speed and the fact that it is more friendly to LIPs. but providing that the case is well prepared, A CC claim should be straightforward enough.

[RachelMD]

I should add, by equal measure, if you're going to use the CC route make sure your case is solid.

 

Pay very close scrutiny to the respondants response to any pre-action argument, and to their response to your application, as should they have a defence (make you've gone over that employment contract with a fine-tooth comb) then you might well find yourself paying their costs, which if they instructed a solicitor could be a lot more than what you thought they owed you in the first place.

[TMAngel]

Bit more of an update. Found out today that an ex-colleague was also in a similar situation - came back from holiday and was initially told that she was being made redundant and they would pay her a months notice, then the letter stating termination of contract - services no longer required. she received 10 days less pay than she should have and also took advice. She threatened them with a Claim 2 days ago and they have emailed her today saying that as a gesture of goodwill, no liability etc if she drops her claim they will pay her the outstanding £1k free from tax/ni into her account tomorrow!

 

So lets see if it works with me - fingers crossed!!

[RachelMD]

Hope she doesn't fall for that.

They pay the money then the claim is withdrawn.

[TMAngel]

Just found out they paid the money into her account this morning so she has dropped the claim. So she's happy today

 

On my issue, the Chairman has emailed asking me to send a copy of my contract. Says the contract they have doesn't say anything about 28 days notice - the one that I have which is signed by myself and the MD does say one month. Says if I can send a copy he can then assess his situation! Fingers crossed for me as well

[RachelMD]

Sounds like they're backing down, whilst trying not to lose face.

[TMAngel]

Well the deadline passed and I didn't hear anything so have submitted my anceET1 Claim. They had there chance to settle amicably and pay what they owed but unfortunately they didn't so had no option. Lets see what happens now !

[TMAngel]

Don't know why it says anceET1 but I meant ET1 Claim!

[RachelMD]

Might be worth sending one of these, it seems your case is very straightforward.

http://etclaims.co.uk/?s=without+prejudice+save+as

[TMAngel]

Thanks so much think I might try it. Do I give them a deadline for them to pay up?

 

I think he's going to try and be awkward and defend on the basis that he terminated my contract 3 days after i handed in my notice. Looked through my contract again and the part which tells me what notice I will be given if my contract is terminated is missing. It only states that I have to give one months notice after one months service.

 

So if it goes by statutory notice does that effectively mean that he only has to give me one weeks notice seeing as I'd been there for 4 months?

 

But ... if I handed in my notice 3 days before he terminated my services (which was after he had the equipment back!) my one month still overides the potential one week??

[RachelMD]

Thanks so much think I might try it. Do I give them a deadline for them to pay up?

I'd wait and see what they have to say on the ET3

 

I think he's going to try and be awkward and defend on the basis that he terminated my contract 3 days after i handed in my notice. Looked through my contract again and the part which tells me what notice I will be given if my contract is terminated is missing. It only states that I have to give one months notice after one months service.

When you say it's missing; do you mean that there is reference to the period of notice the ER is obliged to give the EE, or that there are page(s) missing?

Did you sign and return a copy of the contract?

So if it goes by statutory notice does that effectively mean that he only has to give me one weeks notice seeing as I'd been there for 4 months?

Depends. The WSoPoE should include the period of notice that the ER will give the EE. If they've omited to state that, it would have to be argued.

If they've got a document with your signature on it saying that they only have to give the statutory notice of one week, then that would be the deal.

Unless you're guilty of gross misconduct, they would have to give the weeks notice.

But ... if I handed in my notice 3 days before he terminated my services (which was after he had the equipment back!) my one month still overides the potential one week??

No. If the contract states one week from them, then that is what you'd get.

jekkevcneoriugho/

[TMAngel]

The contract is signed by myself and the MD. This is what it says in the Notice Paragraph:

 

' After 1 months service you are required to give the organisaiton 1 months notice to terminate your employment.

 

You are entitled to receive the following periods of notice from the organisation:

 

(nothing is stated here)

 

At the absoulte discretion of the organisation, payment in lieu of working notice may be made. '

 

 

It doesn't give any details of what notice they should give me. But another colleague was handed her termination of services letter end of June and was paid for one months notice and put on garden leave.

 

Not guilty of Gross Misconduct. No disciplinary either and was in 16th week of employment so out of probationary period etc. Probationary is classed as 3 months and then 13 weeks in another section of the contract.

 

Decided after I'd handed in notice, met with him and handed over equipment to Terminate my Services - Services No Longer Required. He didn't do this during the meeting but sent an emailed letter later that afternoon.

[RachelMD]

You've got a good argument to be given a period of notice commensurate to that which you are required to give, given that they seemingly failed to make written provision to the contrary.

 

Strange that they don't state the required notice the EE is to give.

No chance that there are pages missing from your copy? Are the pages numbered? Does the next page make sense sequentially?

[TMAngel]

No pages missing as the paragraph about notice is about 2/3 down the 2nd page. they have just ommitted to include it so as far as I'm concerned it will be one month

 

Just checked with my ex-colleague and she is going to check her contract but is pretty sure that as standard it is one month for both sides

 

Thanks for replying so quickly!!

[TMAngel]

Got my ET date for 12 October.

 

Also received my P45 in the post on saturday which states a leaving date of 31 July 2011. So doesn't look like he is going to pay my notice, expenses or holiday pay so ET it is. Well they've had plenty of chances!

 

One question, how do I get them to disclose various emails that I haven't got copies of because they were my work email on work laptop? I know the dates that they were sent. (didn't expect this to happen so didn't forward copies of the emails