Late wages - Constructive Dismissal?

[kjrb81]

Hi all

 

I work for a small Limited Company, I have worked there for 2 years 1 month. On the 7/11/12 my boss threatened to not pay me over the telephone, he said I am not getting paid so you are not. He is very much a Jekyll and Hyde character nice one minute nasty the next. I raised a grievance with him on the 8/11/12 sent him a letter saying you must pay me as my contract states on the last day of every month and I must receive pay slips which I have not received since he took over the business in August this year.

 

He refused to discuss the issues with me and said there is no problem I will pay you.

 

Come 30th Nov I had not been paid as per my contract date, so myself any my only other colleague contacted him and he said there was a bank error and we would be paid any day. On the 4th December he paid my colleague but not myself. To cut a long story short he sent me a threatening text message yesterday saying "I told you before I am not getting paid so you are not".

 

I feel I have no other option as to leave and concentrate my efforts on finding another job as he simply will not communicate with me. I have submitted a money claim on line and paid the fee for my late wages. Acas have advised me to fill in the ET1 form for my late pay but I also wondering if it is worth claiming for Constructive Dismissal as I have been told this is very hard to prove?

 

Edited post to add ever since he started, he has belittled my colleague in front of me and customers. Told us to make up prices as we go along, i.e. on a quiet day charge people more. Told me to lie to people to say the visa machine has broken so people can pay cash. Shouted at me over the phone I sit on my backside all day yet two days later told me I was doing a really good job, there are more things as well, he really is a nasty person.

Thanks

Edited December 9, 2012 by kjrb81

[becky2585]

Constructive dismissal is generally difficult to prove as it often means showing a breach of an implied term, usually mutual trust and confidence.

 

However, failing to pay wages is far easier to prove, and you have the text messages as evidence, so I would say CD is definitely worth a shot. If you've already issued county court proceedings, you need to make clear that you are ONLY claiming constructive dismissal and associated damages to avoid double recovery (and potentially the case being thrown our due to estoppel).

[kjrb81]

Thank you very much for your advice Becky.

[steampowered]

It sounds like this company is in serious financial difficulty. If the owner isn't getting any money the company probably doesn't have any money. Insisting on people paying cash is very troubling because it indicates that the company has a serious cash-flow problem, i.e. it owes money to its bank or can't wait for the transaction to be processed electronically.

 

You could issue an ET1 for constructive dismissal, but personally I wouldn't bother. Even if an employment tribunal agrees with you and makes an award, if the company doesn't have any money it is worthless. As you have only worked there two years you wouldn't get much compensation for unfair constructive dismissal anyway. The other benefit of being constructively dismissed is that you can claim for notice pay (2 weeks' pay in your week), but a claim for notice pay can be included in your court claim by amending your claim form.

 

A good strategy might be to contact the employer and say that you are considering a constructive dismissal claim, but won't bother if you are paid within 14 days.