Employer refusing to pay final pay

[5teveD]

Hi, I hope that someone could re assure me that I am in the right or completely wrong either way.

I started a new job in June 2021 with a smaller family run business after over 10 years at my previous employment. I was employed as a workshop manager at the new company who had just moved premises into a larger workshop. I took the job with it being sold to me as family friendly (I was expecting out 1st child in sep/oct).

I was told during my notice period of 2 months at my old company that they are working on a contract for me. Every time I asked about it I was told it was being sorted out. September came and I got an email from the boss' wife stating our holiday period starts in September and she is working on a contract but they are going on holiday for a week and it'll be sorted when they get back.
Throughout this whole period I was set ridiculous deadlines to meet and the stress levels were high, I was told he would be employing more people when I started back in June but he never employed anyone else.

I approached my boss as I was concerned I was working too slowly for this company, to which he reassured me he was after my high quality of work and not speed.
However the months passed with no improvement in workload and I was having to lower my standards to meet tight deadlines.

I took two weeks paternity at the beginning of October to which he asked how I'd like paying. I said we had savings and to just pay me statutory (I later find out he paid me extra masquerading as overtime on my payslip).Nice of him but he kept it quiet which is strange.

Once I was back from paternity things started getting stressful again, I'd stopped all overtime by this point as I wanted to spend time at home with my new family, which he said he completely understood.

He then started sending WhatsApp messages stressing over timescales and workloads and being pretty rude. My tolerance levels were worn very low by this point (December and still no contract or written terms). He kept stating jobs need to go out, if he doesn't get paid then no one gets paid.

I was pretty sure I wanted to resign and use savings to be a stay at home father for a few months whilst I looked for work. I rang citizens advice and they advised me I only needed to give 1 weeks notice as I have no written terms or contract and no one else working there seemed to know what their notice period is.

So I sent my notice via email giving 1 weeks notice. He rang me straight away pretty upset stating I was going to ruin his business and he could potentially go bust. I stuck to my guns but offered help over the phone in January unpaid to help with a few ongoing jobs. He accepted this and wrote me a nice email offering a reference and thanked me for working Christmas eve to finish a job (Christmas eve was an allocated holiday).

Then pay day came on 31st December and I hadn't been paid. I checked with my trainee and he'd been paid in full.
I contacted my boss and he said he was withholding my wages due to me causing future losses as he had taken on work based on my skill levels.
I said that was illegal and I'd like paying to which he then stated he didn't have the money and I'd have to wait another week until he'd been paid for a job. He still didn't pay and ignored my messages.

I am now in early conciliation with ACAS.

I'm owed over 4k before tax and NI and also mileage in my own vehicle.

Am I flogging a dead horse or am I legally right?

Thank you in advance and sorry for the long read.

[ULA]

You are legally entitled to be paid up until the day that you left minus statutory deductions i.e. tax, NI, pension contributions and any overtaken holiday entitlement. Plus, if you had a contract or written statement of terms, there may also have been other items that could have been deducted from your final pay.

So once all that has been taken into account, if you believe you are legally entitled to pay you have not received this is considered an unlawful deductions of wages for which you can made a claim firstly via Early Conciliation (EC) with ACAS and if this is not successful then an Employment Tribunal (ET) claim.

Hopefully your now ex-employer will engage and agree to pay what is owed to you during the EC process which has a 6 week time limit on it. If he does not agree to pay then you would need to pursue an ET claim which unfortunately, given the back-log at the moment, it may be late 2022/early 2023 before you see a conclusion.

I hope that you can bring this to a resolution through the EC claim, however if during this process or if it does unfortunately have to go to ET, you need more support or advice then please come back to this thread.

[5teveD]

Hi, thanks for quick reply, I have never been given a written statement of terms or a contract.

[5teveD]

I have copy and pasted a paragraph from a solicitor's webpage and wondered if my ex employer is clutching on to the "reasonable notice" as a reason to hold my wages. Does this only apply if I have a written statement of terms or a contract?

" What is the minimum notice that you must give to your employer?

Usually, the contract of employment will specify what notice period you should give if you wish to resign your employment. This can be varied by agreement.

If the contract is silent, the statutory minimum period of notice where you have been employed one month or more is 1 week. You can give notice verbally or preferably in writing (an email would suffice). This is to stop any subsequent dispute as to whether notice was, in fact, given.

A much longer notice period may, however, may be implied if it is reasonable in all the circumstances (i.e. what is normal for a person of that seniority and in the industry)."

[ULA]

Can I ask you state in your post #1 that your boss, in regard to you emailing him your notice, "... accepted this and wrote me a nice email offering a reference and thanked me for working Christmas eve to finish a job (Christmas eve was an allocated holiday). Was this acceptance of your notice by email?

If so then he has effectively accepted that you are leaving by giving one weeks notice. It could be argued that, if he felt even without having provided you a contract or a written statement of terms, there was an implication in all reasonable circumstances, that it would have been normal for you in your positon as workshop manager to provide more notice, he should have raised this at the time.

In addition, if he felt you had breached an implication of what would be reasonable notice under the circumstances, you are still entitled to be paid your salary plus any accrued but untaken holiday, less any statutory deductions, tax, NI pension contributions up until the date you left.

[5teveD]

Hi, thanks for the reply. I had an "exit interview" the morning after my notice was sent which turned into a bit of a point scoring match so I said we are going around in circles. He then sent me a WhatsApp message thanking me (I thought it was an email but I was mistaken).

copy and pasted

"Just want to say I appreciate you putting these two days in for me to get bits buttoned up. I’m sorry it hasn’t worked out the way we both hoped it would. It’s the right thing for you to move on as I don’t want to be the one making you feel the way you are. Kids are the best thing that can happen to a person, and if work life is ruining that experience then you have to do this. No hard feelings and thank you for your time with us. We’ve learnt loads from you in a short space. If ever in the future you need a reference I’d be more than happy to give you one. Merry Christmas to you and the family. All the best for the future.

Again thank you for the offer of the video calls in the new year. I feel this would be helpful along with the detailed list you do tomorrow.

Thanks"




Then 31st Dec

Me
"Morning, could you let me know if you received my email from 31st Dec about my over due wages for the whole of the month. Thanks."

Boss
"We have only just come back to work. We have been waiting on a large payment and will get you cleared up this week

Me
"So everyone has been unpaid? Can you give an indication of what day I can expect payment please.

Boss
"[04/01, 08:46]: I have the fitters on site with this unit. Today will be mostly loading but they have asked if they can still contact you regarding the fit if needed
Providing you assist with the install this week as agreed I’ll ensure you’re paid my cop Friday.

Me
"I've spoken to ACAS and you are effectively holding my wages. I have already agreed out of goodwill to help people on site over the phone once my employment ended, effectively working for free.
I shall send you an email with my payment deadline and if it isn't met I shall start the legal ball rolling with ACAS.
It is illegal to withhold wages.

Boss
"You’re not the only one to have taken legal advise. You have caused us huge loss and we are well within our rights to hold back a final payment until the matter is resolved and we’ve proved the losses you have caused us. However, I’m not into all that. Despite what you think I am a fair guy. So as long as you help the fitters get this unit in you’ll get paid, and I’ll suck up the losses. We think that’s fair. I’m not out to strip you of money

Me
"I haven't caused any losses as you said we were running a loss on the job already. The job was started late so any losses were incurred during the planning stages that I had no involvement in.
I left the job in a very organised state and even set up a WhatsApp group with all the fitting advice and annotated photgraphs for the site team.
I'm done with point scoring and borderline blackmail and sent you an email regarding payment deadline. I am still happy to help the site team over the phone if necessary but it is such a simple job using my guidance in the WhatsApp group.

Boss
"Bigger picture. It’s the damaged and losses you’ve caused us with jobs through the future months. I didn’t mention you causes a loss at C&B.

After reading your email I can tell you as I’ve told you above you will not be getting paid until the end of the week as we simply don’t have it. I can’t give you something I don’t have. If you want to start legal proceedings before then that’s up to you. I will add my fitters to the group chat now.



I left it there and contacted ACAS.

[5teveD]

I got a WhatsApp from the boss's brother in law today (project manager)

"Hi mate. The switches on the headboard at cream and brown that you and *** cut in on site. Who gave you the instruction to do at that high. Because we installed the bedsides and the switches are 200mm to low. Hope you can help! "

Me
"Was told to bring them through where the cables came out the wall. Can't remember who told me. I want to help you guys but **** (bosses name) with holding my money isn't helping. I am withdrawing all help until the matter is resolved, sorry.

PM
"Ok I didn’t realise. Thanks anyway"

Me
No worries
Nothing personal.

PM
"Of course"

[ULA]

I suggest having started the EC process with ACAS see how that process works through. In the meantime I would not engage any further directly with your ex-employer as it would appear from his messages that he is not going to unlock your unpaid wages.

In the world of business he should know staff are recruited and staff leave, he has to manage his business in such a way that he mitigates any adverse effects of the ebb and flow of staff. He certainly cannot use this as leverage not to pay you for work you have carried out prior to leaving.

[5teveD]

Thank you so much for your time and help, I have made a small donation in response. It's not much but in the circumstances it is what I can afford given the current situation. Thank you again.

[ULA]

If you need any more support through this, then please just come back to this thread, we are here to help.

Thank you so much for the donation very much appreciated

[5teveD]

So, not much of an update but an update non the less.
ACAS tried to communicate with my ex employer yesterday but could not reach him and will try again next week. It appears they only try once a week, I assume because the amount of cases and workload?

Now is a hypothetical but quite possible outcome. If he decides to shut up shop and set up under a new name to avoid a tribunal (definitely would not put it past him) can I pursue him directly via small claims court as it is his sole decision not to pay my wages?

Seems crazy the law allows directors to shut and open companies, he liquidated his previous company owing 42000 pounds then set up this new one

[ULA]

The ACAS EC service is very busy and the Employment Tribunal is very back-logged currently.

In theory yes you could pursue via small claims court, I do know that unlike the ACAS/ET route, you will need to pay a fee to make a claim via the small claims court depending on how much you are claiming for. I have linked to the fee structure:

https://www.gov.uk/make-court-claim-...ney/court-fees

I think you would also need to have an address/contact details for your ex-employer in order to be able to serve the claim.

Small claims is not my area of expertise but I can tag others on the forum who have knoweldge of this area if needed.

[5teveD]

Hi, thank you. A few tags would be very helpful and appreciated. Looks like a £205 fee so not extortionate in the circumstance.

[5teveD]

I do have an address and contact details

[ULA]

I would suggest you try and pursist at least with the EC process you have a longer time period before you need to start the small claim process.

Hi rob des8 please can you provide some info on the small claim process in case the employment route via Early Conciliation is not engaged with by 5teveD ex-employer. Thanks