Ex employer - threatening letters

[unicorn14]

Hi, i'm new to this forum but would like some advise before seeking a solicitor.
My husband resigned from his job in Jan after working for his employer for since May 2016. A few things made him come to this decision but that is where the hassle began. His employer was not happy he resigned and took him in for a meeting trying to persuade him to stay, he mentioned in his resignation letter that he would work his 4 weeks notice but his employer pointed out that after his 6 months review he was asked to sign a clause making it 8 weeks notice, my husband initially resided to the fact that he would work the 8 weeks until his employer stated he would not get his commission he had earned in Oct, Nov, Dec (paid normally at end of Jan) until the last day of his notice.

His employer is a control freak and ex employees have never been held to this 8 weeks notice. Rightly or wrongly my husband then refused to work the rest of the notice after asking for gardening leave for 2 weeks in Feb (due to some family problems, which my husband informed his employer) and then would go back to train a new person in his position, his employer refused this. A letter then arrived stating my husband had to take his car back, phone, laptop etc on the 31st Jan which in our eyes stops my husband working for this company after 3 weeks and 2 days. He was paid on the 31st Jan his normal monthly salary and we thought that was the end of it, yes his employer wasn't happy but they had accepted all his tools to do his job back.

on the 15th Feb we received a letter stating that they wanted a large figure paid back which is equivalent to unauthorised absence plus a figure for excess holiday pay, also enclosed in the letter was 2 clauses stating he was involved in a company in direct competition with his employer and another clause stating he had disclosed sensitive information, we have no idea what his is talking about regarding these clauses as my husband hasnt been involved in anything since leaving. He stated he was considering legal action.

My husband replied asking for a break down of the amount he was asking to be paid back because this wasn't clear in the first letter. plus a breakdown of excess holiday pay plus clarification of what business involvement and activity he was mentioning in the letter.

We received a reply yesterday which mentions that the large sum to be paid back is for Feb/Mar of his notice he didnt work - which also may i add hasnt been received from his employer, so is this something he can ask for if he hasnt actually paid my husband for?

The holiday pay is due back - husband doesnt dispute this.
and the explanation for the clauses is that an external source has informed him.......that is all - no explanation as to who or what has been disclosed so we still dont know what this is about.
At the end of the letter the employer has now stated to pay back a figure which will conclude this matter but the figure doesnt relate to the original figures sent, so now we are completely confused.

Does my husband have to pay back money he hasnt received?
Just wanted some advice before we seek out an employment law solicitor because this is causing stress to both ourselves.

[ULA]

So sorry to hear about your husband’s situation. Sorry but I have a few more questions for you:

1. Does your husband have a copy of the clause he signed increasing his notice to 8 weeks – just want to make sure this is the case and that his employer is correct?
2. On the commission issue are there any claw-back clauses in the payment of commission that might render an inability for the employer to claim these back for Oct to Dec if it was paid in Jan rather than as part of his final salary on leaving?
3. Did your husband ask for garden leave once he knew his commission would be delayed until his final salary? If so was it made clear to the employer that this was not a reaction to the situation but a genuine personal matter for which I presume he did not expect to be paid.
4. Was 31 Jan whilst he was on personal leave?
5. Did the letter mention anything about 31 Jan being deemed as your husband’s termination date? Was there any indication as to what your husband was expected to do without these for the remainder of the notice period?
6. Was your husband on garden leave when the 15 Feb letter arrived?
7. Sorry finally is there a pay in lieu of notice clause in your husband’s contract of employment?

Your husband didthe right thing by going back as asking for a full explanation of the figures.

My initial view, without a response to the above questions, is that what your husband’s employer is trying to do, without going about it in the right way is trying to make a breach of contract claim because notice has not been worked. Normally an employer would do this by suing for damages in a civil court (i.e. for the cost of supplying cover to do the work or for the value of lost business), or to withhold payment for the period of notice you were expected to work. In reality, it is usually very hard for the employer to point to any financial loss as a result of someone not working their notice.

So, if your husband was only paid up until 31 Jan and has not received any further monies for the remainder of his notice period, I presume he has not been paid for Feb, then effectively his employer has withheld payment for the proportion of the notice your husband has not worked. He cannot then reclaim it again by asking for it to be paid.

There is also potentially for your husband the issue of unpaid but earned commission if that is still outstanding, plus the fact there may be a possibility of a claim for breach of contract by virtue of the fact that the employer rendered your husband unable to work and be paid for the remainder of his notice period.

I appreciate that this is causing a lot of stress to you and that hopefully a strongly worded solicitor’s letter deals with the matter or based on some of the comments I have made you could try to deal with this by sending the first letter and if that does not succeed then a follow up with a legal letter.

[unicorn14]

Hi Thank you for replying, in answer to your questions
1. Yes a copy was shown to him and he remembered he had signed it.
2. The employer has with held his commission payment - there is a clause in the contract - which was pointed out to him " The bonus is non-contractual and and is a discretional scheme, however the intention is for the scheme to be motivational and aims to provide stretching but achievable targets for you so you can be rewarded accordingly. In order for the bonus to be payable, you need to be in employment at the point of payment and not be under notice of leaving" - The employer stated after the face to face meeting, that they would pay the commission as a gesture of goodwill at the end of his notice period 5th March. My husband knowing his employer knew this wouldn't be the case and decided to leave on the 31st Jan, he was just trying to bully him into staying to do the end of the notice period and then would inform him of the clause. - control.
3. My husband asked for gardening leave for beginning of Feb to sort out some personal issues which the employer knew about before he knew his commission would be with held. My husband also stated he would come back after the gardening leave and train a new employee up before he left but was denied.
4. He had to take the property back to his employer on the 31st Jan - as stated in a letter - they mentioned although they didnt agree with him finishing on the 31st they wanted all property back and was told who to meet on the day.
5. Gardening leave was denied
6. There is a clause regarding pay in lieu, it states
a) following your probationary period, unless otherwise notified, the period of notice to be given in writing by either party to terminate your employment is 4 weeks. This will increase after 4 years to 1 week for every complete year to a maximum of 12 weeks.
b) The company reserves the right to pay salary in lieu of notice or place you on gardening leave during your notice period if it so wishes.

He was paid his normal salary on the 31st and took everything back on the 31st and he thought that was the end of it all.
Until the letter on the 15th demanding money to be paid back in 7 days.
He hasn't been paid for Feb - payment was supposed to be the 28th - if he had received payment he would have returned this straight away as he didn't work it.
We are just confused to why he would ask for Feb and week in March monies back, when my husband hasn't actually been paid for that period. he has already kept the commission he earned. Then sends a letter with a completely different figure on to pay back in 7 days that doesn't relate to the first letter.

[ULA]

Given your response I think a strongly worded letter back to your husband's ex-employer which disputes the fact that he owes any money. In fact since other than the personal leave requested your husband was prepared to work his notice period and effectively was frustrated in doing this by the actions of the employer. In my opinion since there is a provision for pay in lieu of notice or placing on gardening leave then the employer actually owes your husband the rest of his notice period.

[unicorn14]

many thanks for your response, my husband just wants this to be over so will speak to a solicitor and hopefully send a strong letter highlighting the fact that he doesn't owe this money he is requesting, as far as the employer owing him money.....who cares, he left for various reasons and his ex employer has shown what kind of person he actually is, money was never the issue, if it makes him feel happy keeping his commission then so be it, threatening letters asking for money back which hadn't actually been received was the issue. Many thanks for your response and you have made me feel less stressed knowing we weren't in the wrong.

[ULA]

Glad that you are feeling better about the situation. A strongly worded letter from a solicitor should be enough to make him stop.
Come back and let us know how it goes.

[unicorn14]

An update....Unfortunately a strongly worded solicitors letter did not work. My husband received a letter from court about a small claims being taken against him on the 13th May 2019. My husband completed the court letter (defendants response) and sent it back to the court on 18 May 2019. disputing all the claim. We then received a letter stating he was taking it to court on 10.06.2019 weeks after we actually sent back the court documents, the letter looks like it was undelivered then returned to them and then resent back to us.

On 25th July my husband received an email from the courts stating that the case has been referred to mediation, he then hears nothing, even though the letter states someone from mediation will be in touch within 10 days.

On 23rd Aug he gets another email saying mediation was not available and that he needs to complete the N180 Directions questionnaire, i've looked at all the leaflets regarding this letter online and it states "you should contact the other side involved in the dispute to discuss the information you are going to provide in the form before returning to the court"

The N180 seems straight forward to complete but i've read we can ask for the hearing to be held closer to our home, my husband works full time and the company he worked for lives 3 hours away. I read i can put on the form D1 - hearing venue, put in local court and state defendants home court persuant to CPR 26.2A but we dont know what this means.

Any help will be appreciated, my husband is thinking of putting me as a witness, would this go against him or not. All i can do is back up all the information he has stated in the court forms is true. This whole thing is making me very ill, i'm under the Dr for stress and anxiety now, my husband is working long hours due to me not being able to work currently.

[ULA]

Hi unicorn14 so sorry to hear that despite a solicitor's letter the situation has escalated to a court claim.

This is unfortunately not my area of expertise but will tag Amethyst for you.

[Amethyst]

Yes the N180 is straightforward to complete. CPR 26 is simply that as you are the defendant and an individual and the claimant is a company with larger resources the claim should be heard in Your local court rather than the claimants local court.

From what you have said said there's no reason for you to be a witness - you haven't been directly involved and would just be confirming your husbands view on matters, which isn't actually useful. You can go with him to court as support though. Just put 1 witness ( your husband as defendant ) on the N180.

Any chance you can type up the claim particulars, defence statement and that solicitors letter you sent. Just to check you are on track and nothing wants rectifying formally ( or informally via later witness statement )


heres the CPR referred to just for ref

(3) Subject to paragraphs (5) and (5A), if the defendant is an individual and the claim is for a specified sum of money, at the relevant time the claim must be sent to the defendant’s home court (save that where there are two or more defendants, one or more of whom are individuals, the claim must be sent to the home court of the defendant who first files their defence).

[Amethyst]

Oh and we should ask for copies of documents /breakdowns etc if you haven't asked since the original request pre court. But I'd like to see the particulars of claim first xx

[unicorn14]

claim pg 1.pdf claim pg 2.pdf claim pg 3.pdf claim pg4.pdf solicitor pg 1.pdf solicitor pg 2.pdf

Hi Amethyst
I tried to scan in the documents but was unable to upload them, so tried to upload as pdf, have blanked out names etc.

will upload defense of these work

[unicorn14]

we are not solicitors and we have never had a court claim so we have no idea if we have done things correctly but we don't have the money to throw at solicitors and my husband works every day and has no time to go to citizens advice, he has rang ACAS and citizens advice months ago, but they all say the same, no idea why he is perusing this claim if he didn't pay you.
defence 1.pdf defense 2.pdf defense 3.pdf defence 4.pdf