Former Employer Owes Money - Advice Please

[Waywardism]

I worked for my previous employer from Dec 09 - Mar 12. I've always had problems with my pay, constantly wrong. Several times I've chased them for money they owed me whilst still employed by them, with occasional success but mostly just mind-numbing frustration.

 

I kept records of everything I did. When I received my final payslip I decided to have a look back over the previous 12 months (that's when the pay problems started getting really bad, before that I just managed it by adding the odd hour here and there to my timesheets). I discovered they have short-paid me by more than £1000 over the course of the year. This is a combination of basic hours, overtime, on-call rates and holiday pay.

 

What's the best way for me to get this money off them? I have no way of contacting payroll, nor do I even know the names of anyone in payroll, and there's no HR department.

[becky2585]

Hi.

 

I would issue a letter before action and probably a subsequent employment tribunal claim for unlawful deduction from wages, citing a continuing series of deductions to get round the three month limitation point.

[Waywardism]

Ok, do I have to address that letter to anyone in particular?

[Sidewinder]

If a LBA then send it to the Company Secretary, a Director or somebody similarly high up in the organisation. It doesn't actually matter providing that is is sent Recorded Delivery (ideally) to the Company at their registered address, but sending it to a particular person should ensure that it gets the appropriate attention at the earliest opportunity!

[Waywardism]

So I wrote the LBA, gave it 10 days... no reply.

 

Tonight I completed an ET claim form online.

 

Now I'm wondering about evidence. What are they going to expect me to produce? I have nothing other than my payslips and my own records of what I've done, which by all accounts is just a bunch of numbers and dates that I've written on pieces of paper...

[elche]

Now I'm wondering about evidence. What are they going to expect me to produce? .

 

Just think about what you can produce to prove what you claim. For example how were you told that your wages were going to be calculated - If you have anything in writing saying that you will be paid X per hour then this, if you were told verbally at interview that you would be paid X per hour then make notes of as much of what you can remember about who told you this - the Who, What, Where, When and Why.

 

Then you need to use the records you say you have to prove why this was not complied with e.g. list all your hours for each day in for example June and, then show your payslip for June which should show a figure less than you expected. i.e. from multiplying number of hours by your hourly rate.

 

As the Claimant the general principle is that you have to prove your claim, not the Respondent prove their innocence. But in reality, if you prepare a nice neat schedule calculating and clearly showing the above, then your ER may well be on a sticky wicket if they have no documentation to refute what you say.

 

After all they are the ER and assumed to have all the resources to keep proper records?

 

Becky rightly says that if you claim within three months of the last deduction and the deductions represent a series of linked deductions then this could go back the entire way. BUT of course you would need to put that claim in within the three months.

 

I think you effectively have three options now you have ceased working for the ER.

 

a) A claim for unlawful deductions under PtII of the ERA 1996 in your ET

b) A claim for breach of contract in your ET

c) A claim for breach of contract in a county court

 

There are subtle differences between the above e.g the ER can counter claim in actions B + C but not in A, and thus sometimes A is the best route; it can depend how much you are claiming.

 

How much do you reckon in total you are owed and how have you worded your ET1?

 

Che

[Waywardism]

It states my rate of pay on my payslips so no worries there. They owe me £956.73.

 

Most of my records don't show what I worked on a daily basis, just weekly totals. That shouldn't matter though right? I have daily totals for the last 6 months or so but only because the company decided we had to start submitting monthly timesheets, on top of our daily and weekly ones, and I made copies of those. I'm just wondering if it would be worth doing a SAR to get copies of all my timesheets?

 

The wording of my ET1 is as follows...

 

Background and Details

In the final year of my employment with x, there was a continuous series of unlawful

deductions from my wages. These deductions were made up of a combination of unpaid hours, holiday pay

and payments for being on-call. I made numerous attempts to rectify the situation with varying amounts of

success, at least in the early part of the year. The main people I dealt with on the matter both left the company

part-way through the year, after this it was practically impossible to do anything about it. I would still notify my

line-manager every month about any deductions, but he was totally ineffectual.

The time period I am referring to is 21st March 2011 until 30th March 2012. The 21st of every month being the

first day of that pay period, 30th March 2012 is when I received my final pay after leaving the company. During

this time my pay was wrong every month.

 

Compensation

73.18 unpaid basic hours @ £7.50 = 548.85

11 unpaid weekend hours @ £8 = £88

6 unpaid days on-call @ £20 = 120

outstanding holiday pay of £341.40

Minus a 'salary in arrears' payment of £141.22 in July 2011.

Total: £956.73

 

Other Info

I had no written contract with x despite asking for one on several occasions.

My hours were variable 'as required', as such the way I have calculated my holiday pay is 12.07% of hours

worked.

I always received my pay slip late, sometimes more than 3 weeks late so that we were already in the following

pay period, despite numerous reminders that it is a legal requirement to supply them on or before payday. This

of course made it more difficult to get deductions rectified.

[elche]

It states my rate of pay on my payslips so no worries there. They owe me £956.73.

 

Well then the dispute is number of hours rather than rate per hour. I still reckon the unlawful deductions claim in an ET is your best route - less formal procedures, no issue fee etc etc

 

On top of this you have a possibility (i think) of 'piggybacking' onto the deductions claim the failiure to issue SMT (potentially 2 or 4 weeks pay as compensation)

 

Are you claiming any unpaid notice pay?

[Waywardism]

Well I gave a week's notice and worked it, haven't paid any attention to whether it was paid, I've just lumped it all in with the calculations for the whole year.

 

What's SMT? And is it too late to do that since I already submitted the ET1 earlier?

[elche]

smt - sorry I mean 'Statement of Main Terms' - I just mean the statement of written particulars i.e. your employment contract - don't worry you seem to have mentioned this so no worries

[Waywardism]

Hi guys,

 

Today I received a letter from my former employer with regards to an out of court settlement.

 

With regard to your claim for discrepancies in your payment we would like

to inform you that we are happy to settle the matter out of court and agree to

pay you the total sum you have claimed £956.73.

 

Could you kindly confirm if you would be happy to agree to this

settlement and sign off the attached letter and send it back to us. We would

then immediately proceed with the BACS transfer directly to your account once we

have received the signed copy back.

 

Also, we would appreciate if you would be able to confirm if you would be

willing to withdraw the claim from the Employment tribunal since all payment

owed to you would be cleared.

 

The bit at the bottom they want me to sign reads:

 

I agree / do not agree to accept an out of court settlement figure of

£956.73 and withdraw my claim from the Employment Tribunal Service with

immediate effect.

 

Once I have signed and agreed to these terms, I will be unable to approach ******** Ltd at any point in the future with regards to any further legal proceedings.

 

So what do you guys think? Does it all sound above board? Do you think it sounds as though they're overly keen to block me claiming anything else against them? Maybe a possible compensation award over the SMT thing that Che mentioned earlier? What's the likelyhood of me getting something like that if I refused their offer?

 

I really don't know what the best way to proceed is.

[assisted blonde]

Not a legal opinion but if you worked it out that this is what they owed you and they have accepted their mistake accept it as you have got what you are owed. you could try and push for more but do you want the hassle, employers make mistakes they are not perfect and they are offering what you originally requested so I would say its fair.

[Waywardism]

I would normally agree but this was no mistake, it was very deliberate.