Employer refusing to pay final pay

[5teveD]

Yes agreed, I will persist with EC and ET. I would just like a little knowledge surrounding the small claims route as I suspect he'll be working around a name change soon
Thank you for the tags

[des8]

If you think that he is likely to liquidate or apply to have his company struck off, keep an eye on his Companies House entry.
If you have to take your employer to court it helps if he is still in existence

Your claim would be for breach of contract and using MCOL is fairly straight forward.
If you need to go down that route, the easiest way for us to assist is for you to draft your claim, and then post it here for tweaking

[ULA]

Thank you des8

[5teveD]

des8 thank you, would it still be breach of contract if I never had a contract? Also could he argue we had a verbal contract even if we didn't?

[des8]

You worked for him, he paid you (sometimes)..... you had a contract, even if the T&Cs were unwritten

Being unwritten I believe he broke the law and you can add to your ET claim for his failure to supply a written contract
( ULA will correct me if wrong!)

[5teveD]

Yes I was reading I could add that on but not use it as a stand alone claim .

[ULA]

Yes as per the des8 yes you can add in the fact that you received no written statement to your ET claim for unlawful deduction of wages.

[5teveD]

Thank you, I shall keep this updated just in case it helps anyone else in a similar spot later.

[ULA]

Please do let us know how it goes and if you have any further questions just come back to this thread. des8 and I will be notified if you post.

[5teveD]

A little update from ACAS


Hi ********

Without Prejudice

Re: ******** v Jtech carpentry LTD

The Respondent has been in touch and put forward an offer of Ł2662.09 net to settle this matter.

Please see below the Respondent's breakdown and payslip attached in order to consider the offer proposed:

Open Quote

Gross basic Ł3333.00
8.5 Hours over time Ł191.25
Expenses Ł85.74
Holiday pay Ł461.53
Less
Cash advance received in Dec -Ł264
Less overpayment in September -Ł151.97

Less Pension -Ł122.01
Less Tax & Ni -Ł871.78

Net Pay due Ł2662.09

Please note pension deductions have already been paid to Nest.

Our holiday year runs from 1st September to 31st August, all staff received an email about this. Steven was owed 6 days and took 3 days over Christmas.

He also received a Ł200 net cash advance in December. In September we paid him for paternity leave but subsequently realised that he was not entitled to this as he had not worked for us long enough.


Close Quote



Once you have considered the offer and the breakdown provided by the Respondent, please can you contact us to confirm whether you are agreeable in principle.



If agreement is reached, the Respondent is looking to conclude via a COT3, which is a legally binding agreement outlining the terms of the settlement and will also prevent you making a claim to the Tribunal. The Respondent has advised that if agreement is reached, the proposed payment date is the 28th February 2022.



Please call us if you wish to discuss.



We look forward to hearing from you,






My reply


Good morning,

Thank you for forwarding the info from Jody

I would like a few things clearing up please.

Firstly the "cash advance" ? Of Ł264

I was handed a Christmas card and as I was handed this **** said "Merry Christmas, there is a little bonus in there for you but don't get too excited as it's not much" there was Ł200 cash in the card. So it was a bonus and no agreement or request for a cash advance was ever made. I will happily declare this to HMRC myself.

Secondly the overtime is 9hrs short of what was worked. I worked Christmas eve which was an allocated holiday and I have a voice note from **** stating he was paying me double for working it.

I also specifically said to **** I didn't want paying paternity as I was using savings but he said "I paid you paternity because that's the kind of guy I am"
However I am happy for him to deduct this as never wanted it.

I will admit that I miss calculated my holiday entitlement and accept the alteration to this.

Why do I have to wait until 28th February? This could all be paid via bacs on the same day?


Please have the payslip corrected with the above information and I will happily accept.

Kind regards
********

[5teveD]

ACAS have since communicated and advised he is standing firm with the offer and if I don't accept then I will not receive a penny.

It's a balance between letting him "get away with it" and just accepting the offer and wiping my hands of it.

[des8]

Rather than looking at it as your ex employer "getting away with it", regard it as making a pragmatic commercial decision.
Don't under estimate the amount of work you will have to do, and the probable stress, if you take this through to a hearing

[5teveD]

Thank you, that's the way I have started thinking.
Worst case scenario what would I have to do if he fails to pay me as agreed?

[des8]

There is a free employment tribunal penalty enforcement scheme or you can go via court.
Cross that bridge if you come to it

[ULA]

5teveD they are wise words from des8 in his post #27. The tribunal process for a litigant in person can be very stressful and will take up a lot of your time, after all it is a legal process. In addition the current situation with the backlog even given it's a one claim case could be up to 12 month time. So I would really look at this on a commercial basis about weigh up the stress and time this will take to pursue against what is being offered.

If you do agree then ACAS will draw up what is called a COT3 and it will be a legally binding document which requires them to pay by the agreed date. If they do pay by the agreed date then you would need to complete a Employment Tribunal Penalty Enforcement form and sent that with a copy of the COT3 to the ET Penalties team. However let's hope that if you make the agreement that they pay and you do not have to go down this route.