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Could your niece contact the college directly stating she doesn't want to do the course? If they agree then the nursery has no reason to withold the money.

 

I'd also look to speaking to acas & a local solicitor. Sounds very like this lady is acting illegally with deductions & taking advantage of a young girl.

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I'm sure Susan will be signed off again, she's not ready just yet.

Nothing more from employer, I imagine she needs to check things out now she knows Susan isn't going to cave in to her demands as she once did!

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  • 2 weeks later...

Hi guys

We have received an e-mail from the employer claiming Susan owes her £1,700 for cost of agency cover for the 6 weeks notice period Susan failed to work. Total was £3,000 less Susan's Hourly rate, less Susan's accrued pay for hours worked prior to resignation, leaves amount payable £1,700, give or take.

 

In order to make it easier for anyone willing to advise, I will enter a * where I would like advice.

 

1) She points out that She had no option but to accept the resignation, as it was left on her desk. I query this , because *she could have shown a little more compassion, as within 6 minutes of Susan leaving the building, she was threatening, making it difficult for Susan to even speak to her again, let alone go back to work, valid point or not, bearing in mind Susan's naivety, which employer would have been well aware of *

 

2) she says Susan is not entitled to SSP, as her sickness started after resignation. Resignation tendered at the end of Susan's shift on Friday, Medical certificate commenced on the Monday. *Could it be argued that, Susan was under emotional pressure when she resigned?*

 

3) points out the fact that Susan agreed to pay agency cover if she left early in signing her contract of employment * Can the employer just sit back for the whole 6 weeks before attempting to find a replacement*

 

4) *Can we ask for proof of this agency cover?*

 

Employer has given Susan until 17th Jan to contact her to arrange a re payment programme or she will commence with legal proceedings. Employer also said she was going on holiday for two weeks, so she's handing it over to nursery manager.

 

Thoughts anyone

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One other thing, employer states that the last page of handbook/employment contract states that employer can legally make deductions for monies owed for the cost of replacing you, so the fact you resigned without notice is immaterial?

 

I take that to mean, she can withhold any salary and holiday pay, which is understandable, but it doesn't necessarily mean she can make Susan pay, or Sue her? If that was the case, then employers would in some circumstances not hold people to their notice in favour of getting an agency person in, knowing the cost has to be covered by the ex employee!

 

Just going to check the wording in the contract

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Quote from employer

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.

 

Quote from handbook

 

If you terminate your employment without giving or working the required notice period, you will have an amount equal to any additional cost of covering your duties during the notice period not worked deducted from any termination pay due to you.

 

In my opinion, it says noting about being able to charge or Sue you for anything over what you have accrued upon resignation.

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Small claims and Employment Tribunals are supposed to be accessible to ordinary people without a solicitor, hence why legal aid is not available. Its not going to be worth using a solicitor for a dispute of this size. You can always go to the CAB if helpful.

 

There are basically three options. First option is to sit back and hope they don't bring a claim, and defend it if they do. Second option is to go on the offensive. Third option is to try and reach some kind of settlement but it doesn't sound like any decent settlement is currently on the table.

 

In your position I'd be tempted to open an Employment Tribunal claim for the unpaid wages and holiday pay. The purpose of this would be to force part of the dispute to be heard on your terms. Section 13 of the Employment Rights Act 1996 prevents an employer from making deductions unless authorised by statute or in signed writing. A signed employment contract would count but its doubtful whether the employee handbook would count. Similarly a general claim for breach of contract due to not working the notice period would not count. This could force a payment and would put a lot of extra pressure on the employer. The employer cannot make a counterclaim in Employment Tribunal. If it wanted to make a counterclaim it would need to begin a separate claim in county court.

 

If you are feeling cheeky could add in a claim for SSP on top but to be honest I think would be pretty difficult to claim SSP covering the period after her resignation.

 

In any event its probably a good idea to write to the employer stating that (1) the employer accepted an immediate resignation and consequently there was no required notice period; and alternatively (2) the employer has not suffered any loss as it would have needed an agency worker anyway to cover the sickness.

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Thanks for that steampowered, I like clear defined options to choose from, so really grateful for your input.

 

Employer has given Susan until 17th Jan to arrange a re payment programme and then commence legal proceedings.

 

On the plus side employer has passed the matter on to the nursery manager (different branch of same nursery) to deal with as she's going on holiday for two weeks, this is good because this lady is far more approachable, and has actually had reason to speak to some of the other staff members when they were caught gossiping about Susan's depression, although I imagine the way forward ultimately lies with the owner, who has made it clear she wants the money back, end of!

 

I think I may try the ' you would have needed cover for my sickness anyway' option at least if it's written down and it does go to court, it would be harder for the judge to ignore that particular issue.

Also it may be worth reminding the employer that Susan's emotional and vulnerable state was ignored (save for passing her some tissues) during their meeting a few days before resignation, employer knew Susan was emotionally unstable, so why put her under more pressure by saying the new team leader was going to need a lot if support from her! A few days garden leave may have been more appropriate, or at least a minimal amount of compassion. There was absolutely no need for this to have got so out of hand, had the employer taken some responsibility

 

Thanks Steampowered, I shall report back, in the meantime I'll make an appointment with the CAB

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Is it possible to find out if agency staff were actually brought in to cover for your niece's absence, it would be an interesting case for them to take to court if this did not actually happen!

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I agree, and obviously that needs to be established, but how we could clarify the cover was actually for Susan as opposed to any other absent staff member or understaffed reason, I don't know!

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If agency staff were brought in to cover for another staff member who was absent, or to cover understaffing then they would have needed to bring in more than one agency staff member, when your niece left they were already one person down (possibly more) so they would have had to bring in a minimum of 2 people.

 

 

if they brought in only one person to cover staff absence or understaffing then the person brought in could not be covering for your niece and another member of staff or the fact that they were understaffed.

 

 

If they brought in 2 or more then they could justify that they were covering for your niece so you need to establish if they actually brought in agency staff, and if so how many.

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Not sure employer will be forthcoming with that information, unless directed to do so by a court, but I will compose a letter this week, and that will be requested.

 

My niece has been told, both nurseries owned by this woman have had several complaints, one having Police attendance, and the nursery my niece was at, is having an emergency Ofstead report done in the next 30 days, because of the complaints, it's only hearsay, but seems as if Susan was absolutely right in her concerns, not that I doubted her for a second anyway.

 

Thanks, I am so grateful for this help, it's quite stressful trying to keep Susan positive, without giving her too much hope that this won't ultimately end up in court.

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She's already in trouble by the sounds of it, being inspected due to complaints. I would rather leave it until after this is over.

I have spent all evening composing a letter, I keep reading and re reading it back, because sometimes it sounds a bit accusing, but all I'm doing is stating the truth.

 

I have asked the following

For proof of the agency costs, and anything to show she's tried to find permenant cover during the 6 weeks.

To point out the part in the employment contract which says an employee can be held liable for cover (all I can find is that she can deduct from salary/holiday)

 

I have asked her to take some responsibility for her part in Susan's sickness, and to pay the holiday/salary due.

I have stated that there has been a breech of confidentiality regarding Susan's medical certificate.

I have stated that she would have needed cover anyway to cover the period of sickness.

I have pointed out how she hasn't asked why Susan left, which indicates she knew she was struggling, and did nothing about it, except make it worse.

 

Told her Susan will defend the case and submit a counterclaim, if she starts legal proceedings

 

Question

Can you counterclaim for damages in a county court?

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Question

Can you counterclaim for damages in a county courtlink3.gif?

 

Yes you can raise a breach of contract counterclaim (i.e. unpaid wages). You can't raise many other employment rights (e.g. unfair dismissal) but she doesn't have the necessary 2 years service for unfair dismissal anyway.

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I was thinking along the lines of compensation for the stress caused, and the costs for time spent responding to her threats and researching. Don't think the wages issue would hold up, as it does clearly state in contract employer can deduct from wages/ holiday any losses.

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I was looking at my contract earlier, and for my notice period it says "4 weeks, unless otherwise agreed with your line manager" or something along those lines. Does your niece's contract have a similar "otherwise agreed" caveat?

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I was thinking along the lines of compensation for the stress caused, and the costs for time spent responding to her threats and researching. Don't think the wages issue would hold up, as it does clearly state in contract employer can deduct from wages/ holiday any losses.

 

The court won't entertain a counterclaim along those lines I'm afraid. You can't claim for general stress. If you win the case in theory it is possible to claim £18 an hour for time spent working on the case but very unlikely any costs would be awarded in small claims track (this track applicable to cases worth less than 10k).

 

The employment contract has to be signed before deductions are permitted.

 

The strongest card might be the fact that agency staff would have been required anyway due to the illness, and the burden of proof would be on your daughter to prove that the illness was genuine and significant. Although I don't have a clear grasp of all the details I also think the fact that it seems the employer accepted the immediate resignation is a strong card.

 

If you can point to some sort of breach of contract by the employer that may justify a constructive-dismissal type situation (the reasoning is that if they are in fundamental breach of contract your daughter was entitled to bring the employment contract to an end) but I don't see anything concrete on this from your posts so far.

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Hi all

Company handbook in addition to one piece of A4 paper headed, Statement of main terms of employment, and signed by Susan.

There is a further A4 piece of paper, again signed by Susan headed, Deductions from pay.

 

Main statement doesn't say anything about recovering costs or deductions, but Handbook and and deductions from pay sheet both say the following:

 

If you terminate your employment without giving or working the required period of notice, as indicated in your individual statement of main terms of employment, you will have an amount equal to any additional cost of covering your duties during the notice period not worked deducted from any termination pay due to you. You will also forfeit any contractual accrued holiday pay due to you over and above your statutory holiday pay, if you fail to give or work the required period of notice.

 

I'm no expert, but that doesn't say to me that employer can sue for agency cover.

Thoughts anyone?

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On the contrary, I think that is exactly what this is - agency!

 

"you will have an amount equal to any additional cost of covering your duties during the notice period not worked deducted from any termination pay due to you"

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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I think this is a bit of a red herring to be honest. Although I think you are correct that the clause mentioned in your post only covers deductions and does not cover claims, I do not think they need to have a specific clause in the employment contract to bring a claim against her in the county court.

 

Leaving before the end of a contractually agreed notice period is breach of contract. If a contract has been breached the employer can make a breach of contract claim to compensate it for any loss it has suffered.

 

The relevance of having the clause in there is that the Employment Rights Act requires a signed contract before the employer can make wage deductions, but the Act says nothing about needing a specific clause to bring a breach of contract claim.

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