My niece needs help please

[steampowered 3,176]

She could issue a claim for unpaid wages. Of course the risk is that the employer makes a counterclaim.

 

 

I don't think she has a good argument to claim any notice pay. She did decide to resign without notice. Accordingly a judgment would not necessarily mean he has decided anything about whether or not she could have worked the notice or about the sickness.

[maddiemay 130]

It was just a thought, really best to focus on the legalities of it, I e no specific clause in employment contract regarding agency staff costs being payable by ex employee.

Won't go down this route then, as you opinions are much valued.

 

Maddie

[maddiemay 130]

Oh sorry, I misunderstood what you were saying, it's not notice pay, it's the 2 weeks pay prior to resignation which employer has withheld to pay agency cover costs, not sure if that makes any difference to you view on Susan issuing legal proceedings or not.

[steampowered 3,176]

Noted, that is what I thought. My view is the same - she has a strong claim to the 2 weeks' pay, but the question is whether you think that is worth the risk of the employer making a counterclaim. If you think the employer will issue a claim anyway then it is worth putting them under pressure and getting on with it. If you think the employer might just go away, then you have to consider the additional stress that would be caused by court proceedings.

[maddiemay 130]

At this stage, we have no idea really, depends on what legal advice she's been given, if any. I think I was just hoping to put an end to it, one way or another, and sooner rather than later.

 

I assume Susan could counterclaim for the two weeks wages if employer does proceed down that route, but my feeling is where counterclaims are concerned, that the DJ would think, if you thought you had a claim, why didn't you instigate proceedings, rather than counterclaim as an afterthought.

 

Claimant always seem to win in my view, unless on a massive technicality which DJ just can't ignore.

[steampowered 3,176]

Yes, if the employer makes a claim she should counterclaim for the unpaid wages. The DJ is unlikely to be bothered who instigated proceedings first.

 

I don't agree that the Claimant always wins. The General Legal Issues forum has many examples of cases where the Defendant has been successful where the case has been properly defended. I think it is fair to say, however, that aggressive Claimants are more likely to win on the basis that very many Defendants fail to file a Defence at all resulting in default judgment, or they file a Defence but end up bottling it because they are too intimidated to go to court. I don't think courts are particularly scary though I guess it can seem like that to people who have no experience of them.

[maddiemay 130]

I think you're absolutely right about the bottling it in court bit, I has a case with Cabot a few years ago with an old Vanquis account, the case I had was one of the strongest cases of it's kind, their guy was as nervous as me, but as soon as the DJ asked me my version, I went to pieces and they both wiped the floor with me, DJ (a woman) even laughed at my mental condition, she was absolutely vile!

I should have complained, appealed and anything else possible, but I was so traumatised by the whole thing, I just wanted to put it behind me, I vowed never to put myself in that position again, but I do actually find myself defending another claim against Lowell's, and believe me, I am going too! I shall tell the truth, and my opinion on why I shouldn't pay them, plus obviously the legal reasons, and if the DJ is any good, he/she will know which one of us is telling the truth, if they don't they shouldn't be in that job!

 

I will find defending Susan's case will be easier, always seems not so bad, if it's not your own.

 

Good to hear, it's not important who initiates the proceedings.

 

Many thanks for your continued support

 

Maddie

[maddiemay 130]

Okay, Susan received a letter today from a solicitor giving her 7 days to pay or they'll issue legal proceedings, it may well be hot air, but we need to get prepared in any case. I know there is no point contacting anyone (cab, pro bono) until the court claim has arrived, but in the meantime, should we respond to the solicitors letter, detailing why Susan isn't going to pay, or ignore it.

 

As always your views would be much appreciated

[steampowered 3,176]

Yes, you should respond. It looks very bad if you don't.

[maddiemay 130]

Thanks steampowered, will do then.

[topcat1802 151]

They may just be trying to intimidate you by getting a letter from a solicitor, so at this stage all you should probably do is acknowledge receipt of the letter an nothing more.

[maddiemay 130]

I thought the same thing, after all the employer thinks she's still dealing with vulnerable little Susan. I/we will respond briefly saying employer has all the reasons why it's not being paid etc, and leave it at that.

Thank you

[maddiemay 130]

Going to attempt to post the solicitors letter up as there are some legal stuff I need help with, such as we must send them all documents we intend to rely on in court, I always thought that came once proceedings have commenced, not this early!

[maddiemay 130]

Here goes! [attachments removed]

[maddiemay 130]

Is anyone about in the next few days to help me with a response to solicitors letter, only have 7 days left.

Also can you see the letter okay, looks a bit small to me?

Many thanks

[renegadeimp 2,290]

Edit out all personal info and convert to PDF.

[steampowered 3,176]

Refer to http://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_pre-action_conduct#A, paragraph 4. This suggests that ideally you should provide copies of documents the claimant wants to see, but in reality this is not actively enforced by the courts and should in any event be balanced by their similar disclosure of documents on their side. There is no legal requirement to provide anything at this stage or to have all of your documents together.

 

I honestly wouldn't get too worried about the documents point. I would simply write a concise response setting out why you feel the money is not due. As previously intimated I think the strongest argument is probably that additional costs would have been incurred anyway due to the illness. You may also wish to mention that a counterclaim would be brought for the outstanding sums.

 

You may also request documents relating to the amount claimed (ideally list the documents you want) and state that you require these to be provided as promptly as possible in accordance with the Practice Direction on Pre-Action Conduct, paragraph 5.1.

[maddiemay 130]

Sorry to be a bother, could admin delete the above links and I 'll repost without identifying details.

Also, solicitor refers to Annex A, but annex B is relevant where claimant is a business and defendant is an individual, do I still go with what annex A says??

[steampowered 3,176]

Annex B only concerns debt claims. Annex B applies in addition to Annex A and basically just says that in debt claims the claimant should provide information about who to contact to set up a repayment plan and should provide contact details for independent advice organisations. The answer is yes, you go with what Annex A says.

[maddiemay 130]

I knew it must have been right, but couldn't figure it out, so thank you steampowered for enlightening me.

[maddiemay 130]

Have an appointment at CAB tomorrow, I'm just too scared to write the full response myself, Susan starts her new job mid April and I can't afford to mess this business up for her when she's worked really hard to get well again, got to give the response the best I can.

 

Does anyone think I should ask for the solicitor to point out the exact clause (implied or otherwise) in the employment contract that specifically states agency costs can be re claimed? I've asked employer several times and she always refers me to the same bit, which doesn't mention anything other than wages or course fee's (implied or otherwise)

[steampowered 3,176]

I don't think you should be getting into letter tennis with the solicitor by making requests. This will not achieve anything, and in my experience often results in the litigant in person saying quite damaging things. I would simply stick to a concise explanation of why the money is not owed (possibly attaching evidence that she was unwell during the notice period).

[maddiemay 130]

I have been getting everything ready for CAB tomorrow, and have read and re read the employment handbook etc, the word mentioned over and over again, is deduction! Its says absolutely nothing about being able to re claim any other way.

 

 

Going through all the letters and emails, the employer moves the goal posts i.e., you can still work your notice if you want, oh hang on a minute, now you've produced a medical certificate, I've decided you cant.

I'm deducting your pay and holiday entitlement to cover the college fee's, oh hang on a minute, now you've had that refunded on medical grounds, I'm deducting it for agency cover instead.

Jeeze, she's a one!

 

 

Okay, wont ask for any information, I can see exactly where you're coming from with that one.

[maddiemay 130]

Update

CAB have been through all the paperwork between us, they advise that the response should include the following documents, and requests

 

Explain the figures quoted in the solicitors letter as they don't add up

Substantiate their losses, proof!

State the obvious, Susan couldn't work her notice period.

Include copies of medical certificate relevant to notice period, and state Susan has only recently been declared well again.

 

I know everyone is probably enjoying their days off and the sunshine, but if anyone could draft a rough response in order to avoid me making it too long, I would be eternally grateful, understand perfectly if unable to.

[SweetLorraine 570]

Hi maddiemay,

 

looking at the advice the CAB has given you, all you may need to do is construct an email guided by the points you have listed. A short line or two for each point that needs it. As above

 

 

• Please explain the figures,
  
• please prove the loss with relevant supporting documents,
  
• reiterate that, as the employer is well aware, Susan couldn't work her notice,
  
• and include copy of the cert. that supports that fact.
  

Short and sweet, as the CAB advised.

 

A barrister once told me that brevity is everything when it comes to putting things in writing. The more you write the more you may limit your own ability to 'manoeuvre' at a later date.

 

All the best.