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ET case help : Not paid wages, no contract, "dismissed" for asking for pay.


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Hi all,

Next door neighbours son is going to ET and I have tried to help him with his case as a litigant in person. He is 18 years old and is his first job.

Long story short:

He applies for zero hours job, and they give him the job at interview. Employer ask him to sign some documents whilst he is there but he is not sure what he signed (most likely contract). He is not given any documents to take away and definitely did not get a  contract to take away so I/he has no idea about the T&Cs. He is classed as an EMPLOYEE.

Company organized work using WhatsApp group for shifts. He does around 10 shifts over 6 weeks.

He was meant to be paid after 1 month but was not paid on pay day, he asked to be paid a couple of time but they did not pay him and kept on telling him that he'll be paid 2 weeks later, again and again, stringing him along. 

In the mean time employer removes him from the Whatsapp group so he cannot sign up for anymore work - he asks why, but is not given any reason - is he "dismissed" at this point? 

He waits another 2 weeks and is still not paid. He asks other employees if they have been paid and tells them that he has not been paid. Employer gets angry that he has told other employees about the non-payment of wages. He phones employer and employer tells him they will not be paying him and even threaten him with violence if he doesn't stop asking about his wages.

He has logged an ET case for: automatic unfair dismissal as he was dismissed when he asked for payment.

The employer has done this to a few other of his colleagues too but those colleagues have not lodged an ET case as far as I know. They are willing to be witnesses. It seems that the majority of them are students/recent immigrants to UK and one of the witnesses I spoke to said "discrimination" but they didn't put in their ET1 as employer kept stringing them along about paying them until their time ran out. They also confirm no contracts given. Seems employer is exploiting students/people with poor english/lack of knowledge of rights.

Employer has ignored ACAS, ET for 6 months but has recently engaged in the process. Employer said in the ET3/preliminary hearing: Admitted to owed wages and holiday pay and will pay him. They said he is not dismissed as they did not dismiss him and that if court finds that he is dismissed that they will argue it's due to conduct (he contacted other employees and complaining about not being paid his wages)

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On his schedule of loss he is claiming:

unpaid wages
unpaid holiday pay
lack of contract/T&Cs

notice pay (probably not applicable as zero hours contract)
interview expenses for next job (can he claim for this?)
compensation for being unemployed between jobs ((probably not applicable as zero hours contract)

ACAS uplift 25% (as employer argues that he is still employed or in the alternative dismissed because he contacted other employees and complaining about not being paid his wages but employer did not conduct any investigation/put accusations to claimant so claim ACAS uplift)
interest

preliminary preparatory costs

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1) Is he dismissed at the point he is blocked from WhatsApp or when they threaten him with violence? Employer is arguing not dismissed as they never told him he is dismissed so they claim he is still employed or in the alternative he is dismissed due to conduct (contacting other employees and complaining about not being paid his wages). 

2) Is there anything else he can claim in his schedule of loss (above) or should remove??

3) Even though employer admitted owed wages and holiday pay in preliminary hearing and said that they would pay up promptly, they are now saying to the claimant that they will pay him this if he signs a settlement agreement. Is there any way to force them to pay as they already admitted owing him this money and that they would pay it.

4) I noticed recently that the directors opened a new company. If the old one was called Pizza Hut Ltd (as an example), the new one is called Pizza Hut (Cambridge) Ltd. Do you think they could shut down the old one and get rid of the ET case and not pay up? If so is there anything I can such as inform the ET/court/companies house about the court case so that they can't wind up the company to get out of paying up owed wages?

Thanks.

Edited by NeffSniff
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Hi,

 

the first point to note is that a zero contract means he is probably a WORKER and not an employee. Different rights apply.

I would actually have gone to small claims court not an ET, for speed. My thoughts below in caps - note I am not a lawyer.

At 18 - I would go for money and not a crusade so I take a pragmatic approach. If you suspect proper right to work checks have not been done you can also report here, depending on your opinion on immigration rights.

 

WWW.GOV.UK

Report someone who you think may be living or working in the UK illegally, employing someone illegally

 

 

1) Is he dismissed at the point he is blocked from WhatsApp or when they threaten him with violence? Employer is arguing not dismissed as they never told him he is dismissed so they claim he is still employed or in the alternative he is dismissed due to conduct (contacting other employees and complaining about not being paid his wages). 

I WOULD SAY HE IS NOT DISMISSED UNTIL HE HAS A LEAVER'S LETTER IN HIS HAND. ZERO HOURS HAS NO OBLIGATION TO PROVIDE WORK. SO STILL ON CONTRACT I'D SAY.

2) Is there anything else he can claim in his schedule of loss (above) or should remove??

JUST PAY AND HOLIDAY PAY

3) Even though employer admitted owed wages and holiday pay in preliminary hearing and said that they would pay up promptly, they are now saying to the claimant that they will pay him this if he signs a settlement agreement. Is there any way to force them to pay as they already admitted owing him this money and that they would pay it.

NO.

A SETTLEMENT AGREEMENT IS IN RETURN FOR KEEPING HIS MOUTH SHUT. I WOULD EXPECT THEM TO PAY HIM MORE TO DO THAT. SO ASK FOR HALF THE WAGES AGAIN, SAY. THEY SHOULD ALSO PAY FOR A LAWYER TO LOOK IT OVER FOR HIM (NOT NEGOTIATE IT! JUST EXPLAIN IT). IF A SA IS ON THE TABLE I USUALLY ADVISE TO TAKE IT TO GET THE THING DONE WITH! FASTER THAN COURT, LESS EMOTIONAL.

4) I noticed recently that the directors opened a new company. If the old one was called Pizza Hut Ltd (as an example), the new one is called Pizza Hut (Cambridge) Ltd. Do you think they could shut down the old one and get rid of the ET case and not pay up? If so is there anything I can such as inform the ET/court/companies house about the court case so that they can't wind up the company to get out of paying up owed wages?

THAT'S A WHOLE WORLD OF DRAWN OUT PAIN FOR NO REWARD. THE SYSTEM IS NOT WELL DESIGNED. TAKE THE CASH, LEAVE THE HIGH GROUND TO PEOPLE WITH ALL THE TIME AND MONEY IN THE WORLD.

Edited by Emmzzi
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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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on reviewing other parts of the internet I see you have had similar advice elsewhere.

just because you do not like it - does not mean it is wrong...

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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Thanks for your reply

 

The other forum members (some of them talk a lot of nonsence) their advice is more to forget it, move on, take it as a learning lesson, go to CAB and then when he does go there he does not know what to do with the advice  as he is 18 and has never dealt with anything like this before.

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well i found out a few things: 

He is a employee - the employer has not disputed this in the ET3/response.

1) you are dismissed when employer tells you you are dismissed or tells you they will not pay you. in this claimants case the employer argues that he is still employed as he was never given a dismissal by employer or failing that they will argue he is dismissed due to misconduct. but in case if he is still employed then he is still entitled to pay slip, contract, wages.

interestingly. it means that those other people that they did not pay are not dismissed (as they never received dismissal from employer, they have just been cut off from any further work) and so still have employment rights.

 

2) SoL

I'll claim it all in case I miss something and let employer legal team dispute in their counter SoL.

3) settlement agreement. I am trying to negotiate this, will see what I can get. Saves a lot of work.

4) The second company things is concerning. But I am thinking that they could have just done this and close the old company down and thereby got rid of the ET claim against the old company. But they have not done this yet and have hired legal firm to represent them. Curious.

 

 

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he is an employee if the court decide he is. have they? 

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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Just now, Emmzzi said:

he is an employee if the court decide he is. have they? 

No, but employer not disputed in their ET3/GOR written by their solicitor. Claimant never given a copy  of contract so I have no idea, but from the way the work was organised I think he meets all the definitions of employee. 

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So as yet, that is unconfirmed. 

Good luck, do let us know how you get on. Hopefully they will decide it is cheaper to settle and it can all be over with fast!

Just now, honeybee13 said:

@Emmzzi, would it be worth sending an SAR to get hold of the contract and any other missing information?

HB

If they go for a settlement agreement then there's little point, but if they don't then yes, that'd be very useful!

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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Just now, Emmzzi said:

So as yet, that is unconfirmed. 

Good luck, do let us know how you get on. Hopefully they will decide it is cheaper to settle and it can all be over with fast!

Yes, but they will have to hand over the "contract" he signed in discovery/disclosure so we will soon see.

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Just because it is in the contract does not mean it is true.

It tells you what the employer *thinks* the status is.

Employers are wrong, often!

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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5 minutes ago, Emmzzi said:

Just because it is in the contract does not mean it is true.

It tells you what the employer *thinks* the status is.

Employers are wrong, often!

If they say he is a worker, I will oppose and let the judge decide. So far employer has not disputed he is an employee. I am assuming employer solictor has seen the contarct and this would be first thing she would have put in if this was the case.

Edited by NeffSniff
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WWW.ACAS.ORG.UK

It's important to know your employment status as it affects your legal rights and what you’re entitled to.

 

 

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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1 minute ago, Emmzzi said:
WWW.ACAS.ORG.UK

It's important to know your employment status as it affects your legal rights and what you’re entitled to.

 

 

Looked at this and he is employee for the most part, also consulted a legal book.

Employee on zero hours contract, from my checks:

Employer offered work, he had to accept a certain amount,
Employer told him when & where to work, he couldn't get someone else to do it.
Tax/NI paid by employer - although he has not received pay/payslip for his work.
Employer accepts contract of employment exists - claimant says they never gave him a paper/electronic copy, and he is not sure he signed a "contract", although he did sign something when he went for interview and they offer him the job there and then. Employer says they gave him a contract to take away, claimant says they didn't. Other witnesses say they didn't get any paperwork to take away too. 

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I'm not sure why you seem to be trying to argue with me? I'm a volunteer and like a quiet life :)

If you are confident you are correct, fair play to you. I'm suggesting the final decision maker in neither you not I, but the court.

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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46 minutes ago, Emmzzi said:

I'm not sure why you seem to be trying to argue with me? I'm a volunteer and like a quiet life :)

If you are confident you are correct, fair play to you. I'm suggesting the final decision maker in neither you not I, but the court.

Sorry, I did not mean to sound argumentative/confrontational. Please accept my apologies. 

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