Help Please, this is abusive

[ysmotek]

Hello all and thanks in advance for any enlightment here...

 

I'll try to keep it short. My husband became unemployed on the 8th of May after an argument with his boss /owner of a restaurant & accomodation due to late payment of his salary. He worked there for 16 months and not one month he got payed on time, always days or even a week late.

 

I will not go into details about working 70 hours + a week, never getting a written contract of employment or receiving his payslips as "the Accountant" is always changing or going on holidays.

 

Unfortunately we've reached a point where a single salary has become more than important and not enough to survive, so any delay would cause overdraft, fees for going on reserve a creating a snowball.

 

My husband told the owner he couldn't work if he didn't get paid on time, that it was the only basic thing he was asking for. The owner said that they would all have a nice day off as the money was going to reach my hubby's account at 4.30pm on the 8th.

 

My husband said he wouldn't work until he got paid. (he's not the only one, same with the Sous Chef, waiters, etc), so he and the Sous Chef left that day.

 

he got paid at 5pm that day (counter credit) and the owner came to our home to make him go back and his strategy was threatening with a solicitor. he needed my husband to work because that saturday the restaurant had an important 200 people charity event (catering).

 

Conditions for my husband and Sous Chef to return until Sunday were: to get paid his acquired holiday payment in advance before the tuesday's shift (denied on 2 occassions before), and cash in hand at the end of each shift.

 

They told him they would pay each shift but the holidays on Sunday after service, as they needed assurance from my husband and the money was coming out from the event.

 

All this via emails....my husband felt he couldn't go back, he knew they were not paying him.

 

They called a Chef to pay him !by the hour, and the guy did not get paid !They lied to him.

 

My husband wrote an email 2 days ago asking when could be a suitable time to pick up his belongings (portfolio, books, knives) and his holiday pay. Never got a reply so he went today, and the owner took the knives from the kitchen and put them in his office). he said he was busy and threw my husband out of the restaurant. My husband told him please I need my stuff to work...he said if he needed to call a solicitor and the owner said bring it on...

 

3 Head Chefs have gone before my husband in similar circumstances, but we can't afford to lose holiday pay as we need the money to move home!!!!!

 

A police officer will go to the restaurant with my husband and the Sous Chef to try and collect their stuff.....and the holiday pay???? what do we do? I called ACAS today, they said it could be constructive dismissal, we have bank statements with all the payments/dates, all the emails, and we have to request the holiday pay in written and give them 14 days....

 

Help please

Edited May 18, 2012 by ysmotek
Editing in some spacing for ease of reading.

[Sidewinder]

This does sound very much like a case of Constructive Dismissal. This, together with the fact that late or non-payment of wages is classed as an 'Unlawful Deduction' under Section 13 of the Employment Rights Act is actionable through an Employment Tribunal.

You need to gather as much evidence as possible (OK - so I know you have statements, emails etc) on paper in chronological order. Who spoke to whom and when, what was said, what was agreed and then didn't happen. This, together with the documents that you have would form the backbone of your case, which is to prove that the employer acted in such a way as to make the employer/employee relationship break down to the point that it became impossible to continue. Try to build in the fact that grievances had been raised previously about the matters which caused distress and the fact that the employer failed to act.

 

ACAS are correct in that you should send a Letter before Action, demanding payment of all sums due, including holiday pay. Give 14 (or even 7) days to make payment then issue an ET1 for the Unlawful Deduction.

 

Try to consult with a solicitor - CAB may be able to recommend one, and if you have home insurance, this often contains legal cover for employment disputes. Constructive Dismissal is not the easiest case to win, hence plenty of evidence and solid, qualified legal advice is almost essential.

[elche]

Hi ysmotek,

 

Sorry to hear about the way your husband was treated.

 

Certainly how much an employee is paid and when he is paid are express terms of a contract of employment. If an employer breaches an express term this could well equate to a fundamental breach. IF, you can prove you resigned in the face of this fundamental breach then in theory at least you have the basis of a constructive dismissal claim.

 

In your case, I suppose the argument would be that as money became tighter for you their repeated failure to pay on time, had an increasingly severe impact on you and thus whilst you could tolerate the breaches earlier on, lately it became impossible to continue like this.

 

Did you ever submit a formal grievance about this whilst in employment? Hopefully for you, the e-mails you have will serve as the grievance.

 

How much holiday pay are you owed as you should in the very least be able to claim this relatively easily.

 

Che

[elche]

And this post crossed with SW's above ......

[ysmotek]

This does sound very much like a case of Constructive Dismissal. This, together with the fact that late or non-payment of wages is classed as an 'Unlawful Deduction' under Section 13 of the Employment Rights Act is actionable through an Employment Tribunal.

You need to gather as much evidence as possible (OK - so I know you have statements, emails etc) on paper in chronological order. Who spoke to whom and when, what was said, what was agreed and then didn't happen. This, together with the documents that you have would form the backbone of your case, which is to prove that the employer acted in such a way as to make the employer/employee relationship break down to the point that it became impossible to continue. Try to build in the fact that grievances had been raised previously about the matters which caused distress and the fact that the employer failed to act.

 

ACAS are correct in that you should send a Letter before Action, demanding payment of all sums due, including holiday pay. Give 14 (or even 7) days to make payment then issue an ET1 for the Unlawful Deduction.

 

Try to consult with a solicitor - CAB may be able to recommend one, and if you have home insurance, this often contains legal cover for employment disputes. Constructive Dismissal is not the easiest case to win, hence plenty of evidence and solid, qualified legal advice is almost essential.

 

Hello Sidewinder thanks for your reply. I've been reading a lot before posting and understand the difficulty in constructive dismissal cases. My hope is that showing we have (well, my hubby has) the knowledge it won't go as far as to a legal dispute per se. We went to CAB the same day, and we'll go again. We don't have home insurance but I'll figure something out. Your info was very useful !

[ysmotek]

Hi ysmotek,

 

Sorry to hear about the way your husband was treated.

 

Certainly how much an employee is paid and when he is paid are express terms of a contract of employment. If an employer breaches an express term this could well equate to a fundamental breach. IF, you can prove you resigned in the face of this fundamental breach then in theory at least you have the basis of a constructive dismissal claim.

 

In your case, I suppose the argument would be that as money became tighter for you their repeated failure to pay on time, had an increasingly severe impact on you and thus whilst you could tolerate the breaches earlier on, lately it became impossible to continue like this.

 

Did you ever submit a formal grievance about this whilst in employment? Hopefully for you, the e-mails you have will serve as the grievance.

 

How much holiday pay are you owed as you should in the very least be able to claim this relatively easily.

 

Che

 

Hello Che, thanks for your reply ! A formal grievance (not a written one) was ever submitted, just endless mouth to mouth complaints. He started as a Sous Chef, after a few months got a cut in salary, he didn't agreed but was scared to lose the job and then promoted as a Head Chef a few months ago. On the conversation about promotion this issue was raised by my husband and they promised to pay on time... HA HA HA

Well Che, good luck with "venceremos"

signed: a fellow compatriota (maybe?)

ps: oh and the holiday pay could be about £800. is what I heard him say but I'll learn to calculate them and get back to you on this one

Edited May 18, 2012 by ysmotek
forgot an answer

[ysmotek]

Hello again, just an update to say my husband went today to recover his belongings, escorted by a police officer, and the owner was nice and even said he left a message to my husband (HE DID NOT), obviously because the police was there. He entered, took his stuff and on the way out asked the owner about his holiday pay, and the guy said we can't pay you because you'll hear from my solicitor. My husband told him ok you'll hear from mine....

[Sidewinder]

Just remember that solicitor or no solicitor it is completely unlawful to withhold wages...

[ysmotek]

Just remember that solicitor or no solicitor it is completely unlawful to withhold wages...

 

Should I then write that in a letter before action? naming the section 13 etc that you posted earlier?

 

Thanks again Sidewinder

[elche]

Hola ysmotek,

 

I've been meanig to get back to this but not had time ....

 

In answer to your question, no it is my other half who is the 'compatriota'' - I've decided I'll never pronounce the rrrrr in ropa in quite the same way that she says it!

 

To get back to your problem, how are you funding the solicitor?

 

I ask this because your costs will likely not be recoverable in an ET and it is perfectly possible to draft the ET1 yourself to claim your sums due.

 

I'm a bit rusty these days but I think that despite the fact that you will going (for amongst other things) for a CD claim then you should still consider writing to your employer asking for written reasons for dismissal:

 

Dear Sirs,

 

I have recently been dismissed from your company.

 

I would like to request that you provide me with written reasons for my dismissal. I would remind you that should those provided be inadequate or untrue, you will have failed to comply with your obligations in this respect as outlined in s.92 of ERA 1996

 

If they fail to reply then potentially this adds another 2 weeks pay to your claim.

 

I suppose potentially you have claims for, (1)Unfair (constructive dismissal),(2) Unpaid Holiday Pay, (3) Notice Pay / Wrongful Dismissal [potentially drafted as an unlawful deductions claim] ,(4) if no written contract potential claim for failure to provide and then also potentially (5) the failure to provide written reasons assuming you write the letter as listed above

 

I have got some sample precedents for eavh of the above heads of claim, and these precedents can be amended by you quite easily and inserted in the correct place on the ET1, but if you've got a solicitor free e.g. via some BTE insurance then they will take care of this. Just to ask again, how are you paying the sol?

 

Meanwhile, as mentioned by SW above, you need to be getting your evidence together to support claim 1 above as this will be the hardest to prove. One easy way to look at CD is to think of it as the reverse of a gross misconduct dismissal i.e. GM by the employer made it impossible to continue to work under the contract of employment. Thus, to that extent it will only be your employer's actions PRIOR to your husband walking our that will be relevant. Post termination actions will go to general background only and have no bearing on the legal substance of the CD claim, which as SW rightly says, could well be hard to win.

 

Kind regards

 

Che

Edited May 20, 2012 by elche

[ysmotek]

Hola ysmotek,

 

I've been meanig to get back to this but not had time ....

 

In answer to your question, no it is my other half who is the 'compatriota'' - I've decided I'll never pronounce the rrrrr in ropa in quite the same way that she says it!

 

To get back to your problem, how are you funding the solicitor?

 

I ask this because your costs will likely not be recoverable in an ET and it is perfectly possible to draft the ET1 yourself to claim your sums due.

 

I'm a bit rusty these days but I think that despite the fact that you will going (for amongst other things) for a CD claim then you should still consider writing to your employer asking for written reasons for dismissal:

 

Dear Sirs,

 

I have recently been dismissed from your company.

 

I would like to request that you provide me with written reasons for my dismissal. I would remind you that should those provided be inadequate or untrue, you will have failed to comply with your obligations in this respect as outlined in s.92 of ERA 1996

 

If they fail to reply then potentially this adds another 2 weeks pay to your claim.

 

I suppose potentially you have claims for, (1)Unfair (constructive dismissal),(2) Unpaid Holiday Pay, (3) Notice Pay / Wrongful Dismissal [potentially drafted as an unlawful deductions claim] ,(4) if no written contract potential claim for failure to provide and then also potentially (5) the failure to provide written reasons assuming you write the letter as listed above

 

I have got some sample precedents for eavh of the above heads of claim, and these precedents can be amended by you quite easily and inserted in the correct place on the ET1, but if you've got a solicitor free e.g. via some BTE insurance then they will take care of this. Just to ask again, how are you paying the sol?

 

Meanwhile, as mentioned by SW above, you need to be getting your evidence together to support claim 1 above as this will be the hardest to prove. One easy way to look at CD is to think of it as the reverse of a gross misconduct dismissal i.e. GM by the employer made it impossible to continue to work under the contract of employment. Thus, to that extent it will only be your employer's actions PRIOR to your husband walking our that will be relevant. Post termination actions will go to general background only and have no bearing on the legal substance of the CD claim, which as SW rightly says, could well be hard to win.

 

Kind regards

 

Che

 

Thanks again Che...

I can't afford a solicitor, so, I am writing the letter (s) myself in a way that looks we are receiving professional advice, which, in a sense, I am. So I am reading this forum and trying to extract bits I can work with. This post has been extremely helpful. I agree it will be hard to pronounce rrrrrrrr the way we do !!!

My regards to other half, and to you for being helpful.....With this forum I've found I am not the only one who had a terrible situation at work, and now my husband as well.

 

Thanks

[borisbeaver]

Don't forget to have words with HMRC.

[ysmotek]

Don't forget to have words with HMRC.

 

I will, many thanks borisbeaver

 

I heard today a comment from another local restaurant that my husband's ex employer is avoiding (them) in giving back catering equipment they hired for the event I mentioned on my post, and of course thay have not payed for this equipment. The trainee Chef left and did not finished his notice, and because is a town where voice spreads quickly, they haven't found a Chef yet. The ones around don't want to work for him.......so, I have this feeling that when I send the letter of action, they will claim bankruptcy. They're also avoiding suppliers...