Employment advice

[maka]

Hi after some advice if possible.

Today I have been contact by a family member go is having some issues with an ex employer.

The issues became so bad that she decided to walk out of the job after 11 months of employment.

She had problem being paid on time in fact around 3/4 of her pay were at least 3 days late with some being nearly 2 weeks.

She is yet to receive any pay slips even though a number of letter sent recorded delivery have been sent.

 

It all came to a head when her employer told her all work had been completed so he is closing early this happened on a number of days. She was not informed this would affect her payslip as being on a low wage she could not afford to lose this income. However when it came to being paid she noticed that her wage was less the hours he closed up early she is/ was contracted to full time hrs. She has spoken to cab who could not offer any advice apart from legal action. Any advice would be great

[SabreSheep]

HI there

 

Sadly there is no recourse to a tribunal due to less than 2 years service

 

A money claim for hours not paid would have to go through small claims and this would depend on the contract.

[ericsbrother]

concur with above.The contract should specify the number of hours per week and if the employer decided to close early that may well break the contractual hours terms. Read about being laid off as there are times when you can suspend a contract of employment without pay but it is always a one-off, not when the employer feels like it.

[maka]

concur with above.The contract should specify the number of hours per week and if the employer decided to close early that may well break the contractual hours terms. Read about being laid off as there are times when you can suspend a contract of employment without pay but it is always a one-off, not when the employer feels like it.

Her contract does not state the amount of hrs she is contracted to however since she left letters have been going back and forth and in one of those letters its states full 37.5hrs how ever they have also said she left early of her own accord therefore in breach of her contract. As I said before she is on low income and could not afford to leave early so this is just not the case surly just say she was leaving early without prior consent this would lead to a disciplinary of some sort to of which there is not.. It does also say the employer can deduct money at anytime. She has emailed me a copy of the contract I have noticed that neither party have signed it either which is odd.

So if she decides court action it's her word against theirs am I right in thinking that?

Obviously this is awful behaviour and how can an employer be allowed to get away with this and not supplying payslips which I thought were a legal documents?

 

Thanks so far

[maka]

I suppose another question even though she's not asked me yet

Is she entitled to any help in regards to income

She is married with young children her husband work full time again he is only on min wage. She was told she could not get jsa due to walking out of her job. Income support from what I can see is a no go due to her husband working full time. She has a mortgage so again I assume no housing benefits will be available nor help with council tax?

[obiter dictum]

i will beg to differ on this one as to The two year rule to bring a claim to a Tribunal is for unfair dismissal.

 

You can still go to a tribunal if the dismissal was for making a protected disclosure or the employer infringing a statutory right

 

The right not to suffer unlawful deductions of wages is a statutory right under section 13 Employment Rights Act 1996.

 

The claim must be instigated withing three months less one day from when the deduction happened

[maka]

She did say she had spoken to scad who said she cannot claim unfair dismissal due to the 2 yr ruling but they did say she could go down the tribunal route another way but did not state how.

[Atlas01]

Off what i can see above if they have a letter stating the work is for 37.5 hrs and it can be read as the hours contractually then they can claim for at least the hours they can evidence they have worked, however i smell zero hours contract to be honest (if they argue it) and it revolves around non payment of wages. the missing sums for hours worked may be claimable.

 

I see nothing around unlawful deduction (they just did not pay), protected disclosers (not relevant here) so i would send you back to the sheep's post above for best course of action.

[maka]

Ok I have just spoken to her to give her an update so thank you all so far for your help/advice ease keep it coming if you have anymore information.

 

She has also just told me that on going back through her bank statements it would appear that for her 1st 3 months of employment she was being paid £6.51ph rather than the £7ph which it states in her contract.

[maka]

I have a copy of it in front of me it says hours of work

The employee shall work 5 days per week Monday through Sunday then it goes on about working overtime

[maka]

Sorry I hate being the go between but she has cancelled her internet due to funds so said I will help as much as I can.

 

In her letter to her ex employer she as asked for payslips and holiday pay and her week in lieu to be paid.

 

Holiday pay has been paid

However her week in lieu they state that she works a week in lieu that means you work a week and get paid the following so no money is owed for that.

In regards to the contract not statiing the hours the letter she has does intact say you are employed on a 37.5hr per week contract of which there is 37.5 hrs work provided and your clocking in and out provides me with the amount of hrs worked therefore paid for those hrs.

[obiter dictum]

If the contract states the number of hours (37.5) to be worked over a week then that is an Express term. You can go for unlawful deduction of wages under section 13 ERA 1996.

You can get a fee remission if claiming state benefits

[Emmzzi]

small claims would be cheaper than an ET. visit moneyclaim online.

[obiter dictum]

As i have already stated, a fee remission is available for an Employment Tribunal if claiming Benefits or on a low income. A County Court will expect this to go through ACAS and the Employment Tribunal Service. Most claims to the tribunal service are settled before it even gets to the Tribunal day being allocated. Just as in a county court claim they expect all parties to try and agree settlement first.

[maka]

If the contract states the number of hours (37.5) to be worked over a week then that is an Express term. You can go for unlawful deduction of wages under section 13 ERA 1996.

You can get a fee remission if claiming state benefits

 

Hi thanks for the reply her contract does not state any hrs it just states she will work 5 days out of 7.

She has a separate letter since leaving that she was contracted to 37.5hrsa week does that matter?

Do I know where she stands with the week In lieu

[maka]

As i have already stated, a fee remission is available for an Employment Tribunal if claiming Benefits or on a low income. A County Court will expect this to go through ACAS and the Employment Tribunal Service. Most claims to the tribunal service are settled before it even gets to the Tribunal day being allocated. Just as in a county court claim they expect all parties to try and agree settlement first.

 

 

Thanks I will get her to call Acas again they offered her mediation service for free so I assume that's needed first to try and resolve it

[maka]

One last think how is she going to force them to give her payslips I can only assume he is up to no good that's why he won't supply them

[obiter dictum]

You cannot instigate a claim with the Employment Tribunal service without first going through ACAS. They will put a hold on any time constraints (Three months less one day) in bringing a claim. Normally up to a month

 

They will allocate a mediator to act on your behalf for free. If agreement cannot be reached ACAS will then give you a code. You use this code when instigating a claim through the Tribunal service

 

Them not supply Payslips works in her favour so do not worry to much as it is a statutory duty

[SabreSheep]

Unlawful deductions of earning can be taken through tribunal OR small claims.

 

In this instance small claims is more preferable as it is

 

a) Simpler

b) Cheaper (Fee remission may not count as it is means assessed on HOUSEHOLD income and assets) Remember OPs Partner WORKS so she does not qualify for some benefits.....Prob INcome based ones which would grant the fee remission

c) Less risk. Even though fee remission may be available, it would not protect you from the other party's costs in a tribunal. A small claims reduces this exposure. In a tribunal the other side will willingly pay for top nothc legal representation knowing that if they win, the poster would be paying their legal bill.

d) Quicker

 

 

Also it is true that unfair dismissal (With the exception of those covered by the single equality act) requires 2 years

 

Remember OP walked out of the job, this would if going that route be Constructive dismissal that requires 2 years service.

 

Unlawful deductions of wages does not require 2 years and is NOT a dismissal issue. It Could go to a tribunal. BUT see my points above.

 

The dismissal that does not require 2 years service is WRONGFUL dismissal .

 

RE: Financial support, you best bet is to ask in the benefits forum and make a thread there.

 

Another point.

 

Variance between hourly rate and that showing in the bank. Make sure to take into account any lawful deductions such as National Insurance, Emergency tax etc.

Edited July 8, 2015 by SabreSheep
Addition to B

[SabreSheep]

Another bit of "give them rope to hang themselves"

 

Submit a full Subject Access Request - cost £10 request ALL data held on her including payroll information

 

Report to Information Commissioner when they fail to comply. This would take 42 days to do. SO I would get this going before any legal action, tribunal or small claims is instigated

[obiter dictum]

It is only on very limited occasions you will have to pay the other sides costs if you lose an Employment Tribunal, Less than 1% of all cases. Costs will be payable if the Tribunal considers your claim to be vexatious and little prospect of success, or you have turned down a reasonable offer of settlement.. The Tribunal Judge will infer on that at any prior cases management hearing. If you carry on after the courts advice as to success and lose then you deserve to be given a costs order.

 

Less than 1% of all Employment Tribunal claims have a cost order go against them.

 

Any fee remission will be means tested though as to any income coming into the home as stated which needs to be considered. If you are over the threshold as to income the costs involved at an Employment Tribunal are about £1200 in total just in court fees. If you do decide to go down the Employment Tribunal route you need to get your fee exemption form in very quick. Remember you only have three months less one day to bring a claim to the tribunal.

 

If the employee walked out and has not claimed Constructive Dismissal the employer can issue a counter claim for breach of contract. That is claiming back the costs of a temp as an example until the vacancy was filled. That also needs to be considered. It is something like only 5% of all constructive dismissal claims are successful and 99.9999% of the time involves a "Protected Characteristic" so dismissal will be automatically unfair irrespective of the two year qualifying period.

 

I would say go down the Employment Tribunal route if you get the fee remission. See what comes back in their witness statement, then decide if you wish to proceed. If they turn you down for a fee remission due to income, then go down the Civil/County Court Route. Have a chat with your local CAB or Law Centre as they might take the case on for you

[becky2585]

It is only on very limited occasions you will have to pay the other sides costs if you lose an Employment Tribunal, Unlike a small claim court.county court. Only then will costs be payable if the Tribunal considers your claim to be vexatious and little prospect of success, or you have turned down a reasonable offer of settlement.. The Tribunal Judge will infer on that before any actual hearing. If you carry on after the courts advice as to success and lose then you deserve to be given a costs order.

 

Less than 1% of all Employment Tribunal claims have a cost order go against them.

 

Any fee remission will be means tested though as to income coming into the home as stated

 

This. Costs are very rarely awarded in the Employment Tribunal, so don't let that put you off! Plus, if you win, you are highly likely to get your fees back from the other side.

[SabreSheep]

https://www.citizensadvice.org.uk/work/problems-at-work/employment-tribunals-from-29-july-2013/what-will-it-cost-to-make-a-claim-to-an-employment-tribunal/employment-tribunals-do-you-qualify-for-help-with-paying-the-tribunal-fees/

[maka]

Unlawful deductions of earning can be taken through tribunal OR small claims.

 

In this instance small claims is more preferable as it is

 

a) Simpler

b) Cheaper (Fee remission may not count as it is means assessed on HOUSEHOLD income and assets) Remember OPs Partner WORKS so she does not qualify for some benefits.....Prob INcome based ones which would grant the fee remission

c) Less risk. Even though fee remission may be available, it would not protect you from the other party's costs in a tribunal. A small claims reduces this exposure. In a tribunal the other side will willingly pay for top nothc legal representation knowing that if they win, the poster would be paying their legal bill.

d) Quicker

 

 

Also it is true that unfair dismissal (With the exception of those covered by the single equality act) requires 2 years

 

Remember OP walked out of the job, this would if going that route be Constructive dismissal that requires 2 years service.

 

Unlawful deductions of wages does not require 2 years and is NOT a dismissal issue. It Could go to a tribunal. BUT see my points above.

 

The dismissal that does not require 2 years service is WRONGFUL dismissal .

 

RE: Financial support, you best bet is to ask in the benefits forum and make a thread there.

 

Another point.

 

Variance between hourly rate and that showing in the bank. Make sure to take into account any lawful deductions such as National Insurance, Emergency tax etc.

 

 

Brilliant thank you everyone for all your help I have passed everything to her.

She is writing the SARS request. Is this the same request as you would send to any company or is there a different type for ex employers?

[maka]

Just a little update today the delivery driver turned up with payslips for the last 2 months nothing for the before that though? Seem very odd clearly trying to hide something.

 

Also the driver did not know her address so the employer has given this out would this be a breach of dpa?