Employer not paying my partners final wage or holiday pay ? HELP PLEASE?

[catherinejxx]

Hi all,

A bit of background to this is, my partner was dismissed on 12th Ocotober for suspected theft of some pies.

They suspended him for one week and then ignored his calls and letters until he eventually got through and they said he was dismissed, we kind of expected it to be honest but we didnt expect for his payday to come along 25th October and not be paid for his service approx £400 and also holiday pay of at least 10 days (which they denied he accured because he was on probationary period?!)

he worked there 6 months.

we have a 2 year old and that money we desperately need, i work full time also but all my pay goes on bills and rent.

my partner phoned them on friday and asked what was going on with his pay and his boss said "its up to me if i pay you the last wage or not it is at my discretion?!" he also admitted he was entitled to 10 days holiday pay also.

all im wondering is if anyone can give me confirmation that this isnt true, i have spoken to acas about this and they told me that an employer cannot withhold pay for any reason so i have drafted up a letter and if someone wouldnt mind taking a look i would be so grateful,

thanks alot.

cath x







Monday 28 October 2013

Dear ______________

My records show that as of the 25 October 2013 £402.35 should of been paid into my nominated bank account for the pay period up until my dismissal from your company on 12 October 2013.


As of today 28 October 2013 payment has not been received.

I also inform you that I am due to receive at minimum 10.5 days worth of holiday pay as I have worked with your company for nearly 6 months 5 days a week. You may add this on to the above pay or make a separate payment if you wish. You explained to me that as I was on probationary period for 6 months I was not entitled to holiday pay, after investigating this further and speaking with ACAS I have the knowledge that your information was incorrect and I am in fact due at least 10.5 days worth of holiday pay by law, this would average at around £400 - £500 based on my average monthly hours/earnings.

After speaking on the telephone with yourselves you stated that it is up to your discretion whether or not you pay me my last wage for the hours worked before my dismissal and also my holiday pay that you agreed I was owed but by law you cannot withhold any wages or holiday pay due to myself.

You should be aware that it is unlawful to withhold payment of due wages without consent, by virtue of section 13 of the Employments Rights Act 1996.

I also add that even after I requested a written terms of employment regarding disciplinary, grievance and dismissal procedures, you did not conform to this and I did not receive anything in regards to terms. The law states that written terms of employment are required to be provided, if requested no later than two months from the commencement if the employee is there longer than one month.

No written contract or terms of employment, which therefore provides no basis for the employer to make deductions or withhold pay from the employee regardless of dismissal for gross misconduct or disciplinary action.

Please accept this as formal notification that unless the full amount due and payable is not transferred into my account within 14 days of the above date, I will be seeking further legal action and will not hesitate to take this matter further in County Court in due course.

In the alternative I will be seeking recourse by way of an Employment tribunal.

I trust you will give this matter immediate attention,

Yours Faithfully

[charitynjw]

Re: Employer not paying my partners final wage or holiday pay ? HELP PLEASE?

Hi catherinejxx,

Withholding wages or holiday pay is 'wrongful dismissal' (as opposed to 'unfair dismissal'), & as such it is a breach of contract which can also be actioned via the County Court.

[catherinejxx]

Re: Employer not paying my partners final wage or holiday pay ? HELP PLEASE?

Hi charitynjw

does this apply even though he has not been given a contract?

does the letter sound ok to you?
he hasnt recieved a payslip or p 45 either,

i was thinking about adding the section 13 of employment law to the letter to back up what i am saying would this be a good idea?

thanks

cath x

[strong123]

Re: Employer not paying my partners final wage or holiday pay ? HELP PLEASE?

Good morning and

There are lots of people here who will be able to advise you, so do not worry.

With regard to you husbands pay ACAS are correct, they cannot withhold his wages for any reason, and I have never heard of a "discretion" with regard to whether to pay someone or not.

I am inclined to believe that he may be doing this thinking you will not take it further due to the nature of your husbands dismissal.

[wales01man]

Re: Employer not paying my partners final wage or holiday pay ? HELP PLEASE?

Get the letter sent after a few on here have had time to advise on it send it recorded delivery if no joy take further action and then Court route its money owed its his

[catherinejxx]

Re: Employer not paying my partners final wage or holiday pay ? HELP PLEASE?

thanks guys,

will sit tight and wait for someone on here to give it a check

he runs a farm and treats all his employees like crap so i dont think anyone has actually challenged him before, but i am willing to do whatever it takes to get that money !!

so near to christmas aswell oculd really use that money

hope someone can help me x

[charitynjw]

Re: Employer not paying my partners final wage or holiday pay ? HELP PLEASE?

Hi charitynjw

does this apply even though he has not been given a contract?

does the letter sound ok to you?
he hasnt recieved a payslip or p 45 either,

i was thinking about adding the section 13 of employment law to the letter to back up what i am saying would this be a good idea?

thanks

cath x

Hi,

There does not need to be a written contract of employment; as long as your partner can prove that he was employed, & that wages/holiday pay is being withheld, it is actionable.
https://www.gov.uk/dismiss-staff/overview

However, it is a legal requirement for the employer to give a statement of employment particulars within 2 months of commencement.
https://www.gov.uk/employment-contra...nt-particulars

If it were me, I would put a heading 'Letter Before Action', & amend it to include 'Employment Tribunal or County Court'.

I wouldn't worry about including the relevant legislation - why do his work for him?
Just have it ready for court, should it come to that.

http://www.hallett-els.co.uk/FreeFac...oc.aspx?id=139
Claims for wrongful dismissal are basically claims for breach of contract. The compensation for wrongful dismissal is limited to the loss suffered due to the failure to give the notice required under the contract of employment. Future losses beyond the notice period cannot be recovered in this type of claim, contrasting the position of compensation for unfair dismissal. The claim may be brought in the County Court or High Court, or in the Employment Tribunal. However the employment tribunal can only make an award of compensation of up to £25,000 for this type of claim. There is no limit on the amount of compensation that the County Court or High Court can award, - subject to the fact that they will only award the actual losses incurred in not having been given proper notice to terminate the contract.

[teaboy2]

Re: Employer not paying my partners final wage or holiday pay ? HELP PLEASE?

On top of the advise Charity has given - Can i ask, was there any disciplinary procedure carried out prior to your partners suspension, was their an investigatory meeting or any meeting at all prior to dismissal. How was he informed of his suspension? was he suspended on full pay? - Basically please provide a full break down of events/actions taken by the employer after the alleged theft. Also whom accused your partner of theft (employer or other employee), and what evidence is there against your partner? (Your partner is entitled to see this evidence).

All important questions!! And depending on your answers we could add even more legal points to the letter regarding the employers failings in employment law which would up the pressure on the employer.

[catherinejxx]

Re: Employer not paying my partners final wage or holiday pay ? HELP PLEASE?

On top of the advise Charity has given - Can i ask, was there any disciplinary procedure carried out prior to your partners suspension, was their an investigatory meeting or any meeting at all prior to dismissal. How was he informed of his suspension? was he suspended on full pay? - Basically please provide a full break down of events/actions taken by the employer after the alleged theft. Also whom accused your partner of theft (employer or other employee), and what evidence is there against your partner? (Your partner is entitled to see this evidence).

All important questions!! And depending on your answers we could add even more legal points to the letter regarding the employers failings in employment law which would up the pressure on the employer.

Hi,

He did not have anything in writing, no meeting, no pay, he went in for his 12 hour shift on Saturday they let him work for one hour and then told him to leave he was suspended infront of all other staff members.
It was another employee who stated to the boss her suspicions ( it was her last day aswell, think she may have wanted to stir the pot a bit! ) the boss said he had to investigate and to phone in one weeks time, which my partner did at first they ignored the calls and messages but eventually answered to say he was dismissed, they dont have any evidence though its just suspected

I sent the letter yesterday via recorded delivery, triued tracking it this morning but nothing showing yet, what if they refuse to sign for the letter?

all in its going to be about 800 pound thats a lot of money to us

does anyone know how long a county court claim takes? do you have to sit infront of a judge and plead your case? we are really nervous about it all, we have never been to a court in our life lol.

x

[teaboy2]

Re: Employer not paying my partners final wage or holiday pay ? HELP PLEASE?

Well based on your reply, the employer has broken every rule in the book for disciplinary procedure and dismissal. So your partner has a claim for breach of contract, automatic unfair dismissal as well as unlawfully with held wages and holiday pay. So the breach of contract/unfair dismissal means you would be able to claim compensation for pay that he would have earnt if his employer had not breached the contract by unfairly terminating his employment. But hes only been there 6 months so wouldn't qualify for tribunal action, though you could add breach of contract to your court claim ion the basis the employer failed to follow any kind of disciplinary procedure as set out by ACAS.