Iffy Employer - Partner Laid Off with No notice and No Holiday Pay

[deannatrois]

My partner worked for a Garage/Service/MOT centre for just under a year )started in October was dismissed August 31st). He was paid just over minimum wage.

 

During the Christmas break, the garage closed down for 8 working days and he was told he wouldn't be paid as he hadn't accrued enough holiday and hadn't worked there for a year. He tried to discuss this with his employer but didn't push it too far because he was scared of losing his job. He was not given payslips for the two weeks concerned, not even 00 payslips.

 

After Christmas he WAS paid for bank holidays and one days holiday during the following months.

 

At the very end of the working day on August 29th he was told there wasn't enough work to keep him on, so they were 'laying him off' (their words). He was paid until August 31st.

 

Going through his wages I can see from the accumulated totals for the weeks before and after Christmas that they show wages being paid (and tax and NI) although he received no pay slips for the 2 weeks concerned and no money.

 

No notice was given (from my research that unless dismissed for Gross misconduct - and he wasn't - a week's notice has to be given once u've worked for a month for an employer).

 

The employers policy on holiday seems to be a bit unclear. He WAS paid for bank holidays and one days holiday after Xmas.., in spite of the employer saying before Xmas he wouldn't be paid for the forced Xmas break because he hadn't worked there for a year (in spite of him only having worked for three months plus). But no accumulated holiday pay was given with his last pay slip. He was given his P45 at the same time. He's short about 20 days holiday if u take off the paid bank holidays etc.

 

I have contacted ACAS who have advised on his holiday 'rights', I found out about the notice period but don't quite know how to proceed. The CAB say we need to write to his former employer but not exactly sure how to word it. I have written the following as a rough draft and wonder if someone could advise me if this is appropriate. I assume if the employer doesn't respond the case will need to be referred to an industrial tribunal (but don't really know?)

 

Re: XXXX - Termination of Employment

I am writing with reference to two issues regarding the termination of my employment at XXXX Garage Services.

1) Termination of Employment - Required Notice Period

I was told my employment was to be terminated on the evening of 29th August 2012, due to a lack of income/work in the Garage. My final pay date was 31st August 2012. According to current Employment legislation, a person whose employment is being terminated who has worked between one month and two years for an employer, should be given 1 complete week's paid notice. This was not given.

2) Holidays:

a. I was repeatedly told through my employment that during the first year, I could not take any paid holiday. I started work for XXXXX Garage Services on 4th October 2011. At Christmas I was forced to take leave as the garage was closed 24th December until 4th January. I was told that this would be unpaid leave as I had not worked for a year at the XXXX Garage. I did try to pursue this with you as I was concerned about the loss of wages during this enforced leave but was repeatedly told the same thing. I was not given payslips for the two weeks concerned. However, I have now checked the payslips around these dates in detail and note that the accumulated totals continue to rise as if I had been paid for these weeks (at my normal rate of gross pay of £2XX per week). The totals also show that I paid tax and NI for these weeks. This is in error, as I did not receive any pay for the forced leave (which includes 4 bank holiday days). I request that either my P45 is corrected to show this lack of pay, or I am paid as the payslips indicate I was.

b) I have consulted ACAS and the Citizen's advice Bureau. They both tell me that in actual fact an employee is entitled to paid holiday from the first day of work, to a value of 5.6 weeks per year worked less paid bank holidays (capped at 28 days).

As I was employed by XXXX Garage from 4th October 2011 until and including 5th September (if the required notice period is included) I should have had included in my final pay all accrued holiday of 25.9 days less the paid bank holidays and one day's holiday I was allowed and paid for in 2012. In my final week, I was simply paid until 31st August. No accumulated holiday pay total was included. As I have already mentioned, the prescribed one week's notice was also not included.

I hope that this matter can be resolved amicably. However, if I do not receive a reply to this letter by 5th October, I will have no hesitation in taking the matter further with suitable representation.

[Conniff]

All the info is there but it's a bit hard to read, I think you should use bullet points to lay it out so that it is more easily digestible.

[Sidewinder]

Agree with Conniff - the detail looks fine, but just needs breaking up a little. I would probably change the last line to make it clear that as paid holiday is a statutory right, as is the right to notice, a failure to pay the outstanding monies will result in you being forced to lodge a claim with an Employment Tribunal for Unlawful Deductions from Wages contrary to Section 13 of the Employment Rights Act 1996.

[deannatrois]

Good advice, many thanks indeed.

[deannatrois]

We wrote the ex-employer a formal grievance letter (bullet pointed lol). He wrote back but lol., made a few slip ups in his reply (most of it lies but lol, he tripped over himself). He did include a small payment towards accrued holiday (not even 25% of what is owed).

 

We have since discovered through a thorough analysis of my OH's payslips that he wasn't paying minimum wage, has given a different (later) start date, seems to have omitted giving my OH payslips whenever he made a deduction because my OH didn't work (this happened on a couple of Saturdays because I managed to go into hospital with a heart attack, his employer was told, because of appointments etc). As far as we can make out, he didn't pay my OH any wages for time missed but the payslip totals before and after the missing payslips seem to say he did.

 

After receiving this reply, we have made a claim through the Employment Tribunal for the amounts owed (now included a mention of the pay being under national minimum wage). I didn't in all honesty know what I was doing (not being a solicitor) but made sure I referenced the relevant acts that were transgressed

 

I am quite worried about the Employment Tribunal though. How do they work? How formal are they?

 

To us, the lies of the employer are rather obvious because he gives reasons for his actions that just aren't logical (besides being untrue), and his story has a number of rather large inconsistencies in it. I don't want to say too much on here. Unfortunately because of the lack of the relevant payslips, its going to be difficult to 'prove' he's lying. There were two other employees at the place of work, but they were very close to the employer and hardly even talked to my OH. I half expect they are going to be witnesses to prove he was the worst employee ever employed at the tribunal (this is one of the things his employer has said in the letter). It isn't true but how do we 'prove' this.

 

Do Employment Tribunals notice when someone is lying when their story is inconsistent? How do they deal with it?

[Conniff]

You could also drop the tax office a line and ask if he is fully up to date and with full credits of NI,

 

You sit around a table for the tribunal, but it's not so informal that they supply coffee.

 

Even if you lose the tribunal, you can have the satisfaction of knowing that it will have cost the employer far in excess of what you were claiming as they have to pay win or lose.

Knowing this, the employer might just cave in and send a cheque.

Edited November 28, 2012 by Conniff

[deannatrois]

Will my OH be given opportunity to use the letter his former employer wrote (and signed) and show the inconsistencies?

[jackieandwayne]

Don't worry about the ET. As a lay person what you have to do is take it one step at a time, go at your own pace (although get the claim registered quick to keep you in time) and read and read and read, until you understand. I suspect what'll happen is the employer will take legal advice, be told what a fool he's been, and, although there may be some blustering and threats fro the other side designed to frighten you off legally, ACAS will get involved and structure an out of court settlement for you.

 

I've just been through the whole rigmarole for a friend, very similar to your story, although he had worked there for much longer, so had more rights. All he wanted was his holiday pay of about £300 and instead we had an out of court settlement for £6K. So take heart - I didn't know what I was doing either, but I must have done something right, and I think that was to make sure the truth was told always, becasuse that means the other side is lying and they WILL slip up.

 

In your case, its pretty clear cut the law has been broken, and this will be proven by documentation - in our case it was going to be my friends word against about 6 employees who had clearly been lined up a year after the event to write lies about him. So we were pleased to get an out of court settlement, because we were on shaky ground. However, we didn't waver (not that they saw anyway!) and in the end the employer was not prepared to take the risk of us winning. Why? Because they hadn't told the truth and knew that they had done wrong.

 

Its best to see a solicitor, but these ET's are supposed to be accessible to the lay person, so in theory there's no reason why you can;t do it yourself. But be prepared for the mountain of paperwork - I now understand (partly) why solicitors charge what they do! And there's a very good book by Naomi Cunningham, Employment Tribunals, Tactics and precedents, which is a good read, even if you have a solicitor, its very clear to understand. I got mine on e-bay for 99p.

 

The only other thing I would warn about is when documents and statements from the other side start arriving, you need to be prepared for what might be a very unpleasant read and try not to be affected by it. The mud slinging is amazing, I found, and I had to seriously remind my friend that it was all rubbish, but even so it was hurtful and really upset him. Which should make you even more determined to soldier on!

 

I hope you get this sorted X Good luck.

[deannatrois]

Many thanks.., yes the mud slinging has started with the reply letter he wrote.., but he also made a major slip up which should show he's making it up as he goes along. Many thanks indeed for the book recommendation, I shall look for it immediately. I realised when I filled in the ET1 that I didn't really have a clue and a solicitor would have been useful.., but obviously with my OH now unable to get a job (the lack of a reference isn't going to help but unemployment is really bad right now here.., normally he can find a job somewhere) a solicitor is completely beyond my means.

 

The ET1 form was sent in a couple of days ago, and the ET sent a receipt so hopefully we have presented it in time (as he was paid up until 31st October but notified he was losing his job on 28th). It was late because my OH was a bit overwhelmed by the process. The way I am looking at it, whatever happens from now.., just the writing of the letter got us a payment my OH wouldn't have gotten otherwise. But don't misunderstand, we are seeing this through. The employers behaviour is quite disgraceful. Last Xmas was unbelievable without even money for food or electricity. He used to take money out of my OH's wages for any reason.., and he didn't get a wage slip on these weeks. Every wage slip we have shows full pay only. He's also now claiming that my OH only worked a 5 day 40 hour week rather than a 6 day week (obviously the garage was open on Saturdays) and so did receive over the minimum wage. All the wage slips showing money was deducted when he took a saturday off (about three of them) are missing. I would feel easier if we had more documentation but I think this employer CAN be relied upon to slip up. He's the arrogant sort lol!

[deannatrois]

The ET has accepted our case so I have met the deadline thank goodness and written vaguely the right things. Now to start swatting up as the case will be heard late January. They have only allocated an hour. Having read this part of the forum thoroughly, I can see that people have had cases found against them inspite of feeling that they had proved their case so I am a bit worried about that.., plus claims that Judges can sometimes be a bit hard on 'laypeople' presenting their own case. Now to buy the swotting up books lol.

 

To be honest, just getting the case accepted was pretty major lol.

 

Re the Naomi Cunningham, Employment Tribunals, Tactics and precedents book, I can get the 2007 edition for about a tenner but the 2009 edition for about £30.., how much difference will it make getting the 2007 edition? Would it be a false economy? Update: I purchased the Kindle edition for £10.

Edited December 1, 2012 by deannatrois

[dmlferguson]

Always go for the newest version because out of all areas of law, employment moves the fastest!

 

As for the one hour hearing, are you sure this isn't just a CMD???

[becky2585]

For wages or holiday pay issues, an hour is perfectly normal

[deannatrois]

Many thanks.., I'm still a bit overwhelmed at the moment., trying to figure out what I need to do - the 'bundle' sounds particularly overwhelming lol. The document we have from the ET says Notice of Hearing. But I'll read on (two children, one with special needs who needs a lot of support gives me limited time)

[deannatrois]

I don't know why they bothered with an hour. Didn't believe a word my partner said. Ex employer produced an unsigned employment contract, he must have been given it. He must have been paid holiday because the employer said he was. He must have only been working a 40 hour week like the employer said (does anyone know of a garage that isn't open 8 til 6 weekdays and half days or more on Saturdays?) so was getting more than minimum wage. It just went on and on.

 

We weren't allowed to view the opponents bundle before the day (I was told we would all bring our bundles in on the day - there was an employment log I asked to see and CCTV records the employer referred to that were accepted without the ability to view them). His ex employer presented witness statements but the witnesses were not there to cross examine (we could have gotten statements to prove our case but because no one was able to appear on the day and I read that they had to be cross examinable, so we didn't include them).

 

I just can't believe what happened.

Edited January 22, 2013 by deannatrois

[deannatrois]

Please I'd be really grateful for advice on this. I don't understand how I read one thing about what should happen in an Employment Tribunal (like you should have an opportunity to peruse evidence from the other side beforehand, to allow u to prepare a defence.., witnesses should be present so you can question them, rather than just have witness statements presented - the statements were false but we had no opportunity to question the people and demonstrate this) and another thing happened. I would like to appeal but can we appeal on these grounds. I bought the Employment Tribunal book by Naomi Cunnigham. What is descriped in there just didn't happen.