My niece needs help please

[maddiemay]

Employer has been pretty fierce so I suppose she must know she's likely to win. Personally I think it's disgusting that immense pressure can be put upon an inexperienced person in such an important environment (with children) bully them when they can't cope with the workload, and then bring legal action because they couldn't face another day in their employment.

 

I don't feel ready to give up the fight just yet, the contract isn't as clear as it could be, and you never know a DJ just might agree it's not clear enough, particularly as Susan was an emotional wreck when she resigned.

Thanks for the info, not what I was hoping to hear, but it's best we know the facts etc, so thanks again

[smokejumper]

I'm not sure about this so only throwing ideas out there to see if it might help.

 

Although the employer is using the contract clauses in her favor, would the case not be that the contract had been broken by requiring Susan to do work she was not trained or capable of doing or that she had no experience in.

 

Also she handed in her resignation, but could not do the 6 week notice period as she was unwell and that had been covered by a dr's certificate that the employer refused to accept. Or are you expected to work your notice when you are well again.

 

As I said just throwing things out there, trying to help, sorry if it's not helping. I will continue to think it through as if it were me and see if I can come back with something else.

[smokejumper]

Just skimmed through the posts and it seems other people had already thought about the contract being broken, sorry.

 

Although see wrote her resignation with immediate effect, can that not be twisted around by saying " yes immediate effect, meaning I will work my notice and then go" and then she fell ill.

[maddiemay]

I really do appreciate you all trying to help, Im happy to consider any ideas at the moment, so feel free to throw them out here! I do feel there are many grey areas in this whole business, but it would be solely down to me to get the points across in the first instance to the employer and then to the court if it does get that far, which I suspect it will.

 

1) The wording in the employment contract does not make it clear that the employer will take legal action to recover costs if notice isn't worked.

2) Susan's highly emotional state when she resigned, it could be argued that she wasn't thinking straight, but the voicemail left by employer the same day made her too frightened to speak to the employer that day, let alone, apologise for her rash decision and return to work her notice.

3) The reasons why she resigned, employer has never asked, could be argued that she knew why and did nothing to help the emotional stress Susan was under.

4) Resignation on Friday, medical certificate provided to employer on the Monday (the next working day) This is the biggest grey area I feel

5) Employer accepted resignation, does that terminate the contract and the terms contained within it? It has been suggested on here that it does

6) Susan couldn't work her notice, she was I'll

7) sensitive information being discussed by staff at both nurseries, could this be a breech of confidentiality (if a witness was prepared to attend court)

 

Or am I just clutching at straws and would be better off recommending to Susan that she does try to enter into some kind of repayment plan with the employer, and put this behind her.

Your thoughts are very much appreciated, I'm kind of on my own with this, and feel Susan is relying on me to do what's best for her.

[SweetLorraine]

Hi maddiemay,

 

are you missing a v. important point or two in the list perhaps (fog of battle and all that).....

 

"Point 4.1 (if you like), employer insisted Susan work her notice." (Late Friday, Monday morning?) 4.2 Was presented with a sick note for 4 weeks as a result of work stress (late on Monday?).... accepted resignation.....

 

From what I understand, the employer did not initially accept the resignation and insisted on Susan working the notice period. It was only on receipt of the month long sick note that the employer (backtracked?) and 'accepted' the resignation. Grey area? To my mind it is more a case of the employer airbrushing out that crucial 'step' in the process to suit the employer's current stance.

 

The employer was insistent on the period being worked until she caught sight of the sick note. That cannot be ignored surely?

[steampowered]

Unfortunately I don't think there are going to be any clear answers on this. If it ends up in court it could go either way as valid arguments can be made for both sides. I would say that point 5 and especially point 6 are strong and give her a good chance of winning, much more than clutching straws.

 

If it helps make a decision, it is worth considering what is the risk if the employer takes this to court. The risk is that she will be liable for the court fees. Assuming an amount between 1k and 1.5k these would be 70 issue fee, 40 hearing fee and 110 hearing fee = 220 total. There will also be a very small amount of interest. If she uses a solicitor there will be fixed costs of 80, but she probably won't as it is not worth using a solicitor for a claim of this size.

 

The more serious risk is the risk of a CCJ going onto Susan's credit record for the next six years, but this would only happen if she loses in court and the amount is not paid in 28 days.

 

The other thing to consider is stress. In small claims track you should be allowed to present her case for her, but Susan will still need to act as a witness and may be questioned by the judge and the employer.

 

If it was me I would be tempted to defend it all the way, and if a court case is opened would counterclaim for the unpaid wages and maybe even for SSP during the period she was off sick. SSP for the notice period could conceivabley be payable if the judge takes the view that (1) the contract of employment continued because the employer did not accept immediate resignation and (2) agency cover would have been needed anyway due to the sickness.

 

An less aggressive option would be to write a 'without prejudice' letter explaining why the case will be fully defended and offering to pay half. I don't think she should be offering the full amount given that she has decent grounds of defence.

[maddiemay]

Oh that's brilliant thank you all so much, the above opinions have given me options to digest, and discuss with Susan today. I suppose offering to accept liability for half, would at least look good in the judges eyes, (but if I don't want the judge to see the offer I put without prejudice on the letter?)

 

7th Nov Resignation tendered Friday at the end if shift

8th Nov Letter from employer arrived Saturday, happy for Susan to work her notice

10th Nov Medical certificate delivered to employer

13th Nov Letter from employer Under the circumstances we have no alternative other than to process the termination of your employment, as such the date will be 8th Nov.

17th Susan wrote Re submitting med cert, and do want me to work my notice, as your letters are contradictory (which they are)

22nd Letter from employer, not heard from you

22nd email sent to employer with letter of 17th attached

26th Nov Employer wrote, I have just found your letter of 17th in my tray, I was in the office last Friday and it wasn't there then (complete lie IMO)

3rd Dec Employer sent pay slip showing deduction made for college course

9th Susan wrote asking for more detailed info on deductions made ie how many holidays had eccrued etc

13th Employer wrote detailing all holiday entitlement and pay to date.

24th employer wrote, You don't need to pay for college course fee

27th Susan wrote, I know I don't, it was me who requested a refund on medical grounds, and by the way, if you accepted my resignation, you can't hold me to the contents in the contract or if you haven't accepted it, where is my SSP (not verbatim you'll be pleased to hear)

7th Jan Employer wrote

I would just like to clarify the situation to date. You signed your contract when you started employment and within this it states that you agree to repay the fees if you leave early and this agreement is an expressed part of your employment contract. The cost of replacing you is detailed in the last page of the Employee handbook and I am therefore legally entitled to deduct the outstanding monies owed to me by having to replace you and the fact that you resigned without notice is immaterial.

With reference to the fact that I accepted your resignation, in fact I had no choice but to accept your notice as you walked out and left the letter on the office desk without speaking to me or any other senior staff member. Notwithstanding this fact you were still bound by your contract to work your notice period, which you did not. As you resigned without giving or working any notice and I accepted your resignation, there is no SSP due to the fact that you became sick after resigning, as per your sick note.

That's it in a nutshell!

Not a single ounce of compassion or concern, nor asked why Susan left in, any of employers letters, just going on and on about this money!

 

Are your thoughts still the same guys?

[steampowered]

Oh that's brilliant thank you all so much, the above opinions have given me options to digest, and discuss with Susan today. I suppose offering to accept liability for half, would at least look good in the judges eyes, (but if I don't want the judge to see the offer I put without prejudice on the letter?)

 

No worries. The legal concept of 'without prejudice' privilege attaches to all genuine settlement offers regardless of whether the letter is headed 'without prejudice'. The letter should not be shown to the judge (and the judge won't take it into account if it is shown to him) either way.

 

Making a settlement offer reduces the chance of being ordered to pay any legal costs beyond the fixed costs mentioned in my last post, although in small claims track this is a very small risk anyway as long as you have genuine grounds of defence and act reasonably.

 

17th Nov ...

I hadn't realised she wrote to the employer asking if she should come in and work the remainder of her notice period. The employer is required to minimise its losses ... even if the employer succeeds on the other points this could be argued to mean that it can only claim for agency fees up until the letter was received.

[ericsbrother]

Employer is being fierce because she needs to win, not necessarily believeing she should.

Also, the resignation was accepted. That is that. If she hadnt accepted resignation all of the othwer points matter but by stating this I interpret it as employer finished with all other contractual issues as being voided otherwise she would have to accept all other points. It was down to employer to say "no" at that point and she didnt.

[ericsbrother]

Employer is still only threatening things rather than actually doing them. Your niece has 2 options for seeking legal redress, the ex-employer only one so room for maneouvre there still. Have you got the CAB's pro bono people's details and are they willing to look at the case? I am aware of what you say about Susan's frail emotional state but you would be surprised about what people can do when placed in a courtroom so make sure it isnt just yourself wavering at this point and being oversensitive and protective. The arguments of this situation are certainly not favouring the employer so personally I wouldnt offer a bean and make them do what they think they have to do rather than give in to her demands now. As you say, she hasnt used a lawyer up to yet and I doubt if one would be willing to sort out the mess for less than £5k so it is not likely that one will be engaged soon.

ultimately down to Susan but ask yourself, what is thwere to lose now? answer nothing really.

[maddiemay]

I have heard of pro bono but not sure how it works.

Susan and I have had a good old chat today, and she is adamant she doesn't feel she should pay the employer, and will go to court.

Employer has a constant supply of agency staff, so proving she had to get someone in to cover Susan specifically, is going to be tricky.

Our plan of action is CAB on Thursday, but does anyone have any thoughts on what we say to employer in the meantime bearing in mind employer gave her till 17th Jan or else.

 

I do agree, each time we make contact, employer gives us a little more time, if she's that sure she's right, stop with the threats and just do it!

 

Susan is on the mend, and even enrolled on some training schemes today, making use of the free courses available to her whilst she's not working.

 

I know I keep saying it, but I do truly appreciate the support you are giving us

[smokejumper]

I'm not the most sensible person.

 

However both sides have made up their minds ( so it seems).

 

Too keep trying to show the employer why you disagree is a waste of energy.

 

I personally would not do anything at the moment, just keep an eye on et time limits, if you intend to go that route.

 

Forget her deadline, that should confuse her and she will have to go away and get on with what she threatened or sulk away with her tail between her legs.

 

problem being £1700 is just larger enough to consider taking you to court, £500 and most people wouldn't bother pursuing that.

 

You have said you would go to court and if you do really mean that, just sit back and if you do go to court, it's no big deal, apart from a possible ccj as mentioned,

[steampowered]

I would just write a short, simple letter stating that she will not be making any payment for the reasons given and a counterclaim will be made if court proceedings are issued. No need to say anything more than that.

[maddiemay]

Thanks everyone, will do as suggested and keep it simple, she'll then know what her opinions are, either get on with legal action or go away.

Will keep you updated.

[Emmzzi]

maddie,

 

I am quite concerned that you seem to be concerned with pushing for a win at all costs, and your niece is learning that you don't need to keep to a contract. Yes, other factors were at play - but bottom line, she resigned without notice. I think you are basing a lot on "well if she hadn't have resigned they would have had to provide cover." A court cannot rule on what ifs and maybes. The plain fact is she resigned.

[ericsbrother]

If you intend to resist the claim then the deadline means nothing. Pro Bono means that a lawyer or the like will do the work for free for the benefit of all. Most CAB's have lawyers who will give advice and may take on the casework if they feel there is merit to it.

The problem faced here is that there is there is no clarity on what either side expected and acted upon the day Susan offered her resignation. Likewise we dont know the exact contents of the employment contract and its lawfulness in the regard of action upon resignation. If you can get someone to look atthis and it does go further there is still the possibility of mediation and if you accept that then the decision reached there is as binding as a court judgement but the process is more gentle with the mediator digging into matters and returning to salient points over time.

[maddiemay]

Clarity on Susan's part is, she couldn't face another weekend hell knowing she had to go back to work there on the Monday, the only thing she did wrong, is leave the letter on the desk, had she phoned in sick on Monday, then gave employer med cert, employer would have had absolutely nothing to claim from her, but unfortunately she wasn't thinking straight at the time.

 

Happy for employer to keep the holiday pay etc of £600, that was never an issue. Susan has had 3 jobs prior to this one and worked her notice in all of the others, so it's not something she does usually.

CAB tomorrow

Thanks again

[Emmzzi]

Good luck. Do listen to advice on the strength of your case carefully.

 

xx

[maddiemay]

Update

 

Sent employer an email keeping it brief and to the point. Checked very carefully to keep it to the 3 facts, as if a judge would be looking at it.

1) Couldn't work the first 4 weeks notice period due to sickness

2) Was prevented from working the remaining 2 weeks by employer (previous offer to allow, was retracted)

3) No clear terms in employment contract to allow deduction of pay or take legal action to cover agency staff costs.

 

Employer sent brief reply saying she was on holiday until February.

[steampowered]

Very well done on sending such a clear letter. It is now very clear to the employer that you will not just roll over. I am sure your niece must be very grateful for your help.

 

 

Unless you want to poke the bear by issuing a claim for the unpaid wages, there is nothing to do now other than sit back and wait.

[ericsbrother]

Had meeting with CAB yet? Did they point Susan in the direction of legal help? Asking because you have a week or so do get yourselves into a position of being better informed than the ex-employer.

[maddiemay]

I did mention the pay Susan is owed, asked for it to be paid on next pay run, or we'll issue a claim, or counterclaim if she sues.

 

Susan is on training courses for unemployed/sick, at no cost so she's doing well, the thing she's most worried about is wanting to find a job, but then being hit with a County court claim and then becoming stressed about it, in a new job. Ideally she wants to get this out of the way and make a fresh start, so I hope employer sorts it out sooner rather than later.

 

I wonder what the time scale for bringing this type of claim would be

[maddiemay]

No haven't been to CAB, I have contacted various people, but to be honest I have been studying all the employment tribunal decisions, although I know it's not relevant in this instance, but it does give a huge insight as to how the judges look at things, it also makes fascinating reading! Will go to CAB if and when Susan gets a claim form

[maddiemay]

Oh I see, alI I need is the contract checked really, but to be honest I'm almost certain (unless the DJ is having a bad day) that the contract doesn't make it clear or anywhere near that agency costs can be clawed back by employer by any other means other than pay or holiday pay, that's just one point of the argument.

 

Employer hasn't done herself any favours by being angry, that's when her mistakes occurred.

 

The saga continues

[ericsbrother]

You wuill not be going to an employment tribunal so why havent you gone an asked about the pro bono legal help at the CAB. The delay from when you said this was going to happen until now will make her ex-employer's task in getting her story straight much easier and you will be on the back foot instead.

Ultimately it will end up in a county court if things arent sorted out, not an ET and the procedures are very different as well as there being limitations on cause and application time for an ET. If the aim is to avoid being sued you need to get proper advice with all of the paperwork etc that is to hand, generic answers from us arent going to get you the detailed answer you need. An alternative is to seek a solicitor who specialises in employment law and ask about a free half hour with the probability of instruction afterwards. many solicitors do this, there is a scheme that they belong to so you can look up one who participate close to home.