Help on taking an ex-employer to Court

[Drewdarlow]

Re: Help on taking an ex-employer to Court

That's brill thanks all, especially Teaboy and Enquirer

I have my contract right here...what parts do you want me to write up?

[Drewdarlow]

Re: Help on taking an ex-employer to Court

Here's the relevant parts of the contract, imo:

HOLIDAYS

8.1 The employee shall be entitled to 21 days paid holiday in each holiday year together with the usual 8 public holidays in England and Wales. The company's holiday year runs between 1 January and 31 December. If the Appointment commences or terminates part way through a holiday year, the Employee's entitlement entitlement during that holiday year shall be calculated on a pro-rata basis rounded up to the nearest half day.

(NOTE: They told me that I was only entitled to holiday pay for every COMPLETED month of service).

8.6 The Employe shall have no entitlement to any payment in lieu of accrued but untaken holiday save on termination of the Appointment.

(NOTE: I resigned)

8.8 If either party has served notice to terminate the Appointment, the company may require the Employee to take any accrued but unused holiday entitlement during the notice period. Any accrued but unused holiday entitlement shall be deemed to be taken during any period of Garden Leave under clause 15.

(NOTE: Clause 15 in the contract is about Data Protection?!?)

INCAPACITY

9.4 Subject to the compliance with the requirements of this clause, the Employee will be entitled to Statutory Sick Pay in accordance with the provisions of the relevant legislation in force from time to time.

So there you go!

Teaboy and all, any idea whether my ruined holidays due to having to work whilst away in order to survive counts towards a claim for damages/distress and inconveneince?

[Drewdarlow]

Re: Help on taking an ex-employer to Court

Interesting webpage here...

http://business.curtin.edu.au/local/..._Holidays1.pdf

Again then, any opinion on this written by myself earlier?

"Well my thinking was that for most people, a wage is first spent on necessities i.e. food, lodging, etc, and then the rest, if there is any, is to go towards pleasure, or savings (which offers pleasure in security, etc). So not paying me the last Ł400 out of a Ł1000 paycheque is possibly something they could reasonably have predicted would deprive me of pleasure?

I know that's a bit tenuous, but as I did expressly warn them that not paying me what I was owed was going to deprive me of the pleasure these funds were to be used for - i.e. my Christmas holiday abroad, and then DID just that, I might be able to claim for distress and inconvenience?"

[teaboy2]

Re: Help on taking an ex-employer to Court

Interesting webpage here...

http://business.curtin.edu.au/local/..._Holidays1.pdf

Again then, any opinion on this written by myself earlier?

"Well my thinking was that for most people, a wage is first spent on necessities i.e. food, lodging, etc, and then the rest, if there is any, is to go towards pleasure, or savings (which offers pleasure in security, etc). So not paying me the last Ł400 out of a Ł1000 paycheque is possibly something they could reasonably have predicted would deprive me of pleasure?

I know that's a bit tenuous, but as I did expressly warn them that not paying me what I was owed was going to deprive me of the pleasure these funds were to be used for - i.e. my Christmas holiday abroad, and then DID just that, I might be able to claim for distress and inconvenience?"

The points you raise above are covered under financial detriment i mentioned earlier - When you issue your claim your claim for financial detriment would be along the lines of the following.

The claimant suffered financial detriment as a result of the defendants unlawfully withholding Ł400 in wages plus accrued holiday pay in breach of section 13 Employment rights act 1996 and section 31 Social Security Contributions and Benefits Act 1992, respectively. As a result of this financial detriment, the claimant was unable to pay bills/rent, denied the pleasure such sum would have given her if not unlawfully with held, such as family time during Christmas holiday abroad (include any payments made to travel company that u lost as a result of having to cancel if any, or if it was less spending money state so instead), pleasure of watching her family open the xmas presents they actually wanted instead of the ones the claimant was forced to buy as substitutes instead, forced the claimant to budget and ration food, shopping with other family and living expenses etc (including debt repayments - State if your credit rating was effected and why too). This Financial detriment also lead to the claimant being stressed and therefore the defendants failure to pay what the claimant was lawfully entitled to led to the claimant being distress, not to mention the further costs and stress the claimant incurred in phoning and writing to the defendant in a bid to resolve the matter amicably.

that is basically what you would need to put in regards to claiming damages and distress caused when you write your claim.

By the way, the link you referred to was for a site based in Australia (AU), their laws are similar in general, and i note the article mentions UK cases as well, but bear in mind this is not a common law contractual dispute, its an employment law one and that's how you need to attack the issue as.

[teaboy2]

Re: Help on taking an ex-employer to Court

Here's the relevant parts of the contract, imo:

HOLIDAYS

8.1 The employee shall be entitled to 21 days paid holiday in each holiday year together with the usual 8 public holidays in England and Wales. The company's holiday year runs between 1 January and 31 December. If the Appointment commences or terminates part way through a holiday year, the Employee's entitlement entitlement during that holiday year shall be calculated on a pro-rata basis rounded up to the nearest half day.

(NOTE: They told me that I was only entitled to holiday pay for every COMPLETED month of service).

Holiday entitlement is accrued per week worked. So if you only worked 2 weeks of a month you'd still accrue holidays (0.56 days per week e.g 29 days entitlement divided by 52 weeks) for those 2 weeks, they can not pick and choose how they think it should be accrued or what accrued days they are willing to pay you for and what days accrued they are not willing to pay you for).

http://www.legislation.gov.uk/uksi/1998/1833/regulation/14/made

8.6 The Employe shall have no entitlement to any payment in lieu of accrued but untaken holiday save on termination of the Appointment.

(NOTE: I resigned)

8.8 If either party has served notice to terminate the Appointment, the company may require the Employee to take any accrued but unused holiday entitlement during the notice period. Any accrued but unused holiday entitlement shall be deemed to be taken during any period of Garden Leave under clause 15.

(NOTE: Clause 15 in the contract is about Data Protection?!?) - Well thats laughable, but very typical.

INCAPACITY

9.4 Subject to the compliance with the requirements of this clause, the Employee will be entitled to Statutory Sick Pay in accordance with the provisions of the relevant legislation in force from time to time.

So your therefore entitled to what is stated as your entitlement to statutory sick pay under section 31 Social Security Contributions and Benefits Act 1992 - Which is one-sixth of your weekly wage for each day off sickness (thats Ł16.67 per day of sick for every Ł100 you earn per week, month).

So there you go!

Teaboy and all, any idea whether my ruined holidays due to having to work whilst away in order to survive counts towards a claim for damages/distress and inconveneince?

See above

[smileyculture]

Re: Help on taking an ex-employer to Court

Would the same apply to someone that was dismissed with no warning or pay off? If arguing status and found to be correct, could you then claim for non payment of tax / NI and holiday?

[Drewdarlow]

Re: Help on taking an ex-employer to Court

Thanks Teaboy you're a star!

[teaboy2]

Re: Help on taking an ex-employer to Court

Would the same apply to someone that was dismissed with no warning or pay off? If arguing status and found to be correct, could you then claim for non payment of tax / NI and holiday?

Not for tax/NI as that is paid by employer to HMRC and deducted from actual earnings paid to you, in a sense those sums didn't not belong to you to start with. But for holidays and unpaid wages, yes you can claim. Though if your employer failed to pay your tax/NI when they should have, then you can report them to HMRC.

Plus dismissal without any verbal or written warnings, except for gross misconduct cases, and without any disciplinary procedure would be unfair dismissal.

[smileyculture]

Re: Help on taking an ex-employer to Court

Thank you for clarifying that teaboy2, its most helpful.