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Deductions from final salary on dismissal

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Please can somebody advise?

 

Partner was dismissed for gross misconduct - falsifying timesheets.

 

Appeal has been made although no response has been received (only a week ago). CAB have advised they will help if it goes to tribunal (and I guess it will).

 

Final payslip had large deduction made (presumably in line with supposed fraudulent claims) also approx 2 weeks holiday pay was missing - not mentioned on payslip.

Previous payslip was missing all its overtime (quite a lot of hours).

 

We have asked for a breakdown of the deductions (the amounts do not tie up with the hours/shifts being queried) but not received one.

 

P45 was sent with final payslip so there is no reason to assume the holiday pay will be sent in time.

 

We accept that contract of employment allows for employer to take back overpayments (although don't think there are any in all honesty).

 

So, how do we insist that he provides an explanation of the hours deducted?

 

And, what do we do about the holiday pay? Is it a job for the small claims court or do we need to wait for the tribunal?

 

He's short a lot of money and its Xmas soon.

 

On the plus side, he has got another job (although on less money) and they know what happened at his last place. Seems not all employers are scared off by a CV that says "I was sacked".

Edited by citizenB
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In short, the employer can't withhold salary owed or holiday pay accrued and this needs to be dealt with by a LBA then an ET1 claim being filed. Base your claim on your own calculations if the employer is not playing ball. You have three months to do this so there is still time to wait for the outcome of an appeal - again, include this in the LBA that you will be seeking redess for Unfair Dismissal and Unlawful Deductions from Wages.

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this needs to be dealt with by a LBA then an ET1 claim being filed.

 

 

Thanks for the reply - but what is an LBA please? I know what an ET1 is.

 

Also, letter was on doormat tonight saying appeal meeting tomorrow at 9am.... don't think that's the way its meant to be done.

 

IGNORE ME PLEASE - I have just found the answer, its a Letter Before Action - which I guess means a trip to the small claims court.

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Found the answer!

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IGNORE ME PLEASE - I have just found the answer, its a Letter Before Action - which I guess means a trip to the small claims court.

 

Not at all - it is a letter, headed Letter Before Action

Dear Sir,

 

I have not been paid wages or holiday pay totalling £XXX to which I am legally entitled. The breakdown of this sum is shown below.

 

You should be aware that the withholding of accrued holiday pay, salary or other payment due to me is classed a an Unlawful Deduction contrary to Section 13 of the Employment Rights Act 1996. I require payment of the sum shown within ten days of receipt of this letter, or will be forced to make a claim through an Employment Tribunal.

 

Yours faithfully

 

That isn't appropriate procedure for a disciplinary appeal - and if not convenient you should be allowed to reschedule the date or time.


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Hi

 

Could you please give us dates of the following please:

 

When you were actually informed of Disciplinary?

Date Disciplinary Hearing was held?

 

Were you informed of your right to be accompanied at that disciplinary hearing by either a work colleague or union rep and given a copy of the companies disciplinary policy/procedure?

 

At the end of the disciplinary hearing were you notified of your right to appeal and the process?

 

Could you also please give us a brief outline of the disciplinary itself witnesses if any, their evidence etc just to try and give us a picture to assist your appeal.

 

What was the basis of your appeal letter?

 

Also less than 24hrs notice of Appeal Hearing is short noticed and you can request an extention due to such short less than 24hrs notice given.

 

Now please have a look at the ACAS website: www.acas.org.uk/

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Hi

 

Could you please give us dates of the following please:

 

When you were actually informed of Disciplinary? Early November.

Date Disciplinary Hearing was held? early Nov followed by dismissal at end of Nov

 

Were you informed of your right to be accompanied at that disciplinary hearing by either a work colleague or union rep and given a copy of the companies disciplinary policy/procedure? Yes. to the bringing somebody along but no, to a copy of the disciplinary procedure. Contract makes brief mention but in no details.

 

At the end of the disciplinary hearing were you notified of your right to appeal and the process? No a letter came after dismissing him. Letter was written day after last meeting. Appeal had to be in 5 days of receipt and was submitted sooner. Employer was sent an e mail after submitting appeal (but before he wrote giving date of appeal) pointing out that annual leave had been booked from work for this week and that attending a meeting might be difficult due to other commitments and suggested an evening meeting as a way of scheduling it soooner. (Personal opinion, small business so employer knew about hols and is trying to be awkward. Missing the appeal would have gone against partner I imagine in a tribunal situation. I suspect that employer thought partner would not see letter until after the meeting time.)

 

Could you also please give us a brief outline of the disciplinary itself witnesses if any, their evidence etc just to try and give us a picture to assist your appeal. Not sure about doing this on an open forum? CAB have been consulted previously and expressed a view that it would go to a tribunal. As we have no explanation of which wages were deducted despite asking we still don't know exactly what the boss is disputing.

 

 

What was the basis of your appeal letter? Not sure about giving such detail here and now. Perhaps after the appeal? It was written by the CAB for us.

 

Also less than 24hrs notice of Appeal Hearing is short noticed and you can request an extention due to such short less than 24hrs notice given. Partner has found another job (new employer knows what is going on but obviously old employer does not) so he decided to attend today. It will be raised at tribunal that employer has scheduled meeting knowing that it would not be convenient. Also letter giving date of meeting was not also sent by e mail like previous letter which would have meant he had known about it sooner. Employer is aware that previous letters written on a Friday have only arrived on Tuesday. He did not send it "signed for" or recorded in any way.

 

 

Thanks both of you

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Not at all - it is a letter, headed Letter Before Action

Dear Sir,

 

I have not been paid wages or holiday pay totalling £XXX to which I am legally entitled. The breakdown of this sum is shown below.

 

You should be aware that the withholding of accrued holiday pay, salary or other payment due to me is classed a an Unlawful Deduction contrary to Section 13 of the Employment Rights Act 1996. I require payment of the sum shown within ten days of receipt of this letter, or will be forced to make a claim through an Employment Tribunal.

 

Yours faithfully

 

That isn't appropriate procedure for a disciplinary appeal - and if not convenient you should be allowed to reschedule the date or time.

 

Sorry, it seems you can't get rid of me.

 

Appeal meeting has happened.

Guy who chaired appeal has said it should have been a final written warning not the sack. Obviously its up to his ex-boss now as to what happens.I don't want to post too much just in case he reads here!

In the meantime ex-boss has paid holiday pay (although not all that's due suprise suprise.) No payslip (and P45 was received long before holiday pay was paid when he was sacked). Bank statement says how many days are being paid.

So , my problem is. Holiday pay was paid gross. Obvioulsy tax and NI are due. Who is responsible? Do we ask ex-boss for payslip and another P45? Or do we just tell the taxman and let them chase him? Personally I think ex-boss is too tight to ask the company that does his payroll to sort this out properly and a payslip and P45 won't happen without pushing.

 

We will be seeing a solicitor in the new year. Depending on the boss's response we will either be looking at unfair dismissal or constructive dismissal I guess.

Any advice would be appreciated.

 

Many thanks

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Do be careful not to miss the time limits on this. I see that it has been two months already. You have three months minus one day from the date of an effective dismissal to file a claim in the ET, don't be late!

 

You need to make a decision about whether you just want to go for payment of outstanding wages and holiday pay (an easy claim) or unfair dismissal (a more time-consuming and stressful claim). If you just want to go forw ages then carefully calculate how much you think your hubby is due, and write a simple LBA asking for payment of the unpaid amount within 14 days or you will file a claim in the ET. If payment is made within 14 days you won't bring an unfair dismissal claim, but if payment is not made you will. If you want to go the whole hog and claim unfair dismissal, then explain unpaid wages but also make the unfair dismissal point and ask for their proposals for compensation - this will probably lead to a fight in the ET. Remember your hubby will need to meet the other conditions to claim unfair dismissal (i.e. minimum period of employment).


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Do be careful not to miss the time limits on this. I see that it has been two months already. You have three months minus one day from the date of an effective dismissal to file a claim in the ET, don't be late!

 

Please can you clarify for me? Government website says

You usually have to apply to the tribunal within 3 months of your employment ending, or the problem happening at work.

So, does the 3 months start ticking from the date of dismissal (end Nov) - or the date of suspension (beginning of Nov)

 

 

Many thanks

 

 

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If someone is dismissed for gross misconduct it is classed as summary dismissal and as far as i know you forfeit the right to accrued holiday pay and notice.


Any opinion I give is from personal experience .

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If someone is dismissed for gross misconduct it is classed as summary dismissal and as far as i know you forfeit the right to accrued holiday pay and notice.

 

No - you only forfeit notice pay - accrued holiday pay to the date of termination is a statutory right and cannot be withheld.


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I stand corrected. Is there a time limit for claiming this back?

I see that it is statutory holiday which i assume includes bank holidays.


Any opinion I give is from personal experience .

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Failure to pay holiday pay would be an Unlawful deduction under S.13 of the Employment Rights Act 1996 - Letter before Action to the employer and file a claim with an Employment Tribunal - three months less one day after the pay was due to file the claim.

 

Holiday takes a certain amount of calculation - BHs aren't automatically 'paid' holiday in many organisations. Annual entitlement is 5.6 weeks paid holiday which can include BHs where they are not normally worked and where the employer includes these days off as part of the annual holiday, so it depends on what the arrangements are in a particular workplace.


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Thanks for the info. Far to long ago for me to claim sadly.


Any opinion I give is from personal experience .

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The three month time limit only applies to the employment tribunal. If there is a large amount of holiday pay outstanding, you could claim for this in small claims court where there is a six year time limit. It is not advisable to use court unless you really have to as it is a more formal procedure, you can't bring unfair dismissal proceedings there and you would have to pay a court fee, but it is at least an option.


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I am sorry and am putting in on someone's thread. Even if within the contract it says no holiday pay on summary dismissal then this is not lawful?

So it's been 18 months and i calculate i am owed about £700 in accrued holiday pay. What would my next step be,a letter to HR stating i believe i am entitled to it or a LBA demanding the payment?


Any opinion I give is from personal experience .

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Any contract which removes statutory rights would be unlawful and needs to be challenged. I would certainly write to HR stating that you have recently been made aware that the employer may have unlawfully withheld accrued holiday pay. Give a breakdown and advise that legal advice suggests that you would have ample grounds to sue if the money is not repaid. See what comes back and take it from there.


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Thank you, very much appreciated. I go away tomorrow but as soon as i get back i will search and see if i still have payslips. If i do so much the better. I will then compose a letter as suggested.


Any opinion I give is from personal experience .

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Well got home and looks like everything has been ditched. I have checked my bank statements and the pay in May is consistent with a tax rebate but without payload i can not be certain. I have written asking for copies of my payslips.


Any opinion I give is from personal experience .

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Hi

 

Back again like a bad penny.

Partner sacked.

Appealed - and won.

Offered job back but declined for a variety of reasons.

Sent LBA detailing outstanding pay owed.

Received letter back saying former employer would pay back only part of what was owed and no more.

Two questions.

1. Do we just fill out the ET1 and get on with it or do we have to go back to him and argue the case for more money?

2. Employer is going to send a cheque for the money he has agreed to pay. Amount will be GROSS with no tax and NI deducted. Is this correct? He says partner has to sort out paying tax and NI to taxman?

 

Thanks once again

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file the ET not point messing about. You can withdraw if they play ball.

 

Best ask HMRC about the tax.


Never assume anyone on the internet is who they say they are. Only rely on advice from insured professionals you have paid for!

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For the latter part, it depends how HMRC treats the payment-if it is salary then the employer should deduct tax and NI and pay its NI contributions to boot. If it is considered as severance then it is taxable income but not pay, so you pay tax on it but not NI contributions via your tax return. It seems to me that the company is just being very lazy so if it does get to an ET then they wont think well of an employer doing that and will deem it net pay and tell the employer to pay HMRC what is due on that amount.

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Employer has said he will send a cheque - but it has already past his 10 days as per the LBA from partner.

Cheque is for Dec pay....but partner had found new job and worked some of Dec. Employer knows he has a job but is unlikely to know when he started (although small chance he does).

 

I have told partner NOT to bank cheque if it says "in full and final settlement" or similar. He wants to wait till cheque is cashed before submitting ET1 because he is concerned that if employer is notified of tribunal and discovers his start date he won't bother to send the cheque.

 

Partner believes that cheque will not be sent out until month end and will then take three days to arrive (all his post takes forever for some unknown reason).

 

Obviously partner would rather have money in pocket (which is understandable) but I would rather not delay with the ET1. Views please.

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