Update - ex employer not paying last wage - received a letter from them advice please

[catherinejxx]

Hi everyone,

so since the letter before action letter we sent out we received this letter back only today 2 days before the time ran out !! There are still some inaccuracies with this which I will list below. Now if you read my last thread you will know this is for my partner not me,

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With reference to you letter dates Monday 28th October I am replying to you to address a few issues.

Firstly let me clearly outline the grounds of your dismissal. You were caught purposefully removing goods from the company without payment or permissions. These were secreted in your personal belongings and you were leaving work for the day when you were caught stealing two frozen pies. You were photographed with the stolen items and did not deny that. You were informed you were suspended.

The reason for the time taken to resolve this matter is that we have been busy and also trawling through CCTV footage - naturally along with everyday running of the business this is taking some time and is not finished!

Your employment is formally terminated on the grounds of theft. With regards to money owed the ingot in your letter is wholly inaccurate.

you began working here at end of may you were paid in June July August and September and then worked one week in October. Over this time you did not work 5 full days and such as any holiday entitlement would be pro rota basis. I calculated the average working work and accrual of holidays would be 4.5 days and a sum of £214.54.

your actual clocking records demonstrate you worked 47 hours however 6.5 was already paid in September. So this totals 40.5 hours which would equate to the sun of £255.56 payable.

Please be aware I have fully documentation of money to substantiate this summary.
We are also waiting a meeting with the police either tomorrow or early part of next week to review CCTV and disusd how we can take this matter further.

to this end we would like to ask you to attend a meeting in the office to formally go through the situation and get a cheque payable for any monies outstanding to you however this would have to be after the police meeting and we are commuted to a couple of days next week so if you could contact us with a time that would be agreeable to you to come in during week commencing 18th
we look forward to hearing from you.
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So the holiday entitlement I have gone into gov.uk and put in the dyes they state on the letter for 4 days a week and the holiday entitlement is still 9 days, whic he definitely did work at least 4 day a week! Even if he only worked 3.5 for the dates they state it would still be 6.5

so my questions are:

can anyone give me a definite way of workig out holiday entitlement?

do you think we should deal with it this way or still open claims on Monday?

I think 18th is a bit too late to be honest it's after the deadline stated in the letter

does anyone know what action will be taking with police ?

Please advise on what to do next

thank you x

[charitynjw]

Re: Update - ex employer not paying last wage - received a letter from them advice pl

Link to previous thread - http://www.legalbeagles.info/forums/...t=catherinejxx

[catherinejxx]

Re: Update - ex employer not paying last wage - received a letter from them advice pl

Thanks charitynjw x

[charitynjw]

Re: Update - ex employer not paying last wage - received a letter from them advice pl

From your previous thread it would appear that the employer has decided to dismiss on the grounds of gross misconduct, that being the alleged theft of a couple of pies.
The employer did not witness this , preferring to believe the evidence supplied via another employee. (Now ex-employee?)
It would also appear from your above post that the employer is having problems substantiating this accusation. (CCTV footage would, if available, be immediately accessible.)
Has your partner admitted to the allegation?
If not, I suspect that the police, if they are involved, would require more than just the say-so of one other person.

[catherinejxx]

Re: Update - ex employer not paying last wage - received a letter from them advice pl

From your previous thread it would appear that the employer has decided to dismiss on the grounds of gross misconduct, that being the alleged theft of a couple of pies.
The employer did not witness this , preferring to believe the evidence supplied via another employee. (Now ex-employee?)
It would also appear from your above post that the employer is having problems substantiating this accusation. (CCTV footage would, if available, be immediately accessible.)
Has your partner admitted to the allegation?
If not, I suspect that the police, if they are involved, would require more than just the say-so of one other person.

Yes they have dismissed him for the 'theft' of the two pies.
Bascially he paid for the pies forgot to take them home that day therefore leaving them in the ffreezers
he was off for the next 2 day, on his next day in Saturday 5th October on arriving at work he put the pies in his bags as to not forget them again, the now ex employee told the manager what she witnessed. The boss then came into the kitchen opened partners bag saw the pies and accused him of this theft. They would not listen to his explanation and told him he was suspended.
They took photographs of the pies in his bag. This is evidence they have apparently. He has not admitted this as they have state in the letter and they have no proof of this.
They holiday calculation is wrong as said previous even if he only worked from the dates they state the direct gov website stated he would still have 9 days which is double what they are saying. I am worried about he police coming to the house when I am at work as my daughter would be left unattended. Do you think he could be sent to jail ? I may sound silly here but I am so worried about the situation as we have some major bills set to come out within the next couple of weeks I am nt sure if we should just accept what they are saying and take the money £200 approx short or still fight it and if so what to do next?
Thank you for your time x

[charitynjw]

Re: Update - ex employer not paying last wage - received a letter from them advice pl

From what you have outlined, I would doubt whether the police would have anything to go on.
To prove theft, there has to be intent to steal, & of course a high standard of proof will be required. (Beyond reasonable doubt).
However, I will give one of our regular contributors a nudge on this - he's an ex-policeman & so is better placed to answer you on this.

I don't think he's on the forum at the mo, but he'll pick up my PM (private message) in due course.

[catherinejxx]

Re: Update - ex employer not paying last wage - received a letter from them advice pl

From what you have outlined, I would doubt whether the police would have anything to go on.
To prove theft, there has to be intent to steal, & of course a high standard of proof will be required. (Beyond reasonable doubt).
However, I will give one of our regular contributors a nudge on this - he's an ex-policeman & so is better placed to answer you on this.

I don't think he's on the forum at the mo, but he'll pick up my PM (private message) in due course.

Many thanks for your help charitynjw I really appreciate it x

[MissFM]

Re: Update - ex employer not paying last wage - received a letter from them advice pl

Yes they have dismissed him for the 'theft' of the two pies.
Bascially he paid for the pies forgot to take them home that day therefore leaving them in the ffreezers
he was off for the next 2 day, on his next day in Saturday 5th October on arriving at work he put the pies in his bags as to not forget them again, the now ex employee told the manager what she witnessed. The boss then came into the kitchen opened partners bag saw the pies and accused him of this theft. They would not listen to his explanation and told him he was suspended.
They took photographs of the pies in his bag. This is evidence they have apparently. He has not admitted this as they have state in the letter and they have no proof of this.
They holiday calculation is wrong as said previous even if he only worked from the dates they state the direct gov website stated he would still have 9 days which is double what they are saying. I am worried about he police coming to the house when I am at work as my daughter would be left unattended. Do you think he could be sent to jail ? I may sound silly here but I am so worried about the situation as we have some major bills set to come out within the next couple of weeks I am nt sure if we should just accept what they are saying and take the money £200 approx short or still fight it and if so what to do next?
Thank you for your time x

Hi Catherine

Hope you don't mind me adding my two penny worth even though I'm not an expert. From the above, he didn't even steal the pies, (even by mistake) - he had paid for them and told these obnoxious people so at the time he was wrongfully accused.

I don't think you should worry at all about the police and certainly not prosecution or prison. (I bet Bluebottle will put this in a more robust way when he arrives). The advice above is correct and they can't lawfully refuse to pay what he is owed.

It's incredibly frustrating to read a story like this and I wish you the very best of luck in getting what is lawfully yours!

[bluebottle]

Re: Update - ex employer not paying last wage - received a letter from them advice pl

Hi Catherine,

Charity has PMed me about your case. I have sent him a brief resume of my view of your former employer's actions. In a nutshell, your former employer is in deep doo-doo and, from what I have read, knows they are in deep doo-doo and are now frantically trying to dig themselves out of a massive hole.

If they had any credible and substantial evidence, they would be obliged to disclose this long before now. So it is futile them saying they are "trawling through CCTV footage". The evidence, if it actually exists, would be readily accessible. I have also noted that the other employee had already paid for the pies. legally, they are his property. The moment a retail sales transaction concludes, title passes from seller to buyer. If the other employee had left them in a freezer in the staff room, having previously paid for them, and asked you to bring them home to him/her, you had lawful authority to do so and were in lawful possession of the pies. So unless the employer can prove to the contrary, they are treading on the legal equivalent of a minefield.

The police, CPS and the courts take a very serious view of those who make false reports of crimes and an even more serious view of those who make false allegations against others, particularly where it involves alleged dishonesty. The criminal penalties for making a false report are not exactly lenient. The penalties for making false allegations against others are severe. Notwithstanding any criminal penalties, the financial consequences of making a false allegation, under Civil Law, can be very costly indeed.

From an employment point of view, your employer, unless they can substantiate their allegations and reinstate you, is looking, potentially, at a claim for Unfair or, possibly, Wrongful Dismissal, as well as loss of reputation and the financial consequences attached thereto.

[catherinejxx]

Re: Update - ex employer not paying last wage - received a letter from them advice pl

Hi thank you both for your words.

Im such a worry wart I know deep down he wouldn't go to prison over something like this but it still unsettles me to think he could get a criminal record if the police do not believe his side of the coin.

I really don't know what to do next regarding the pay - I have worked out the hours worked is correct but the holiday pay should be double. I am not sure wether to just tell my hub to take what they are offering or fight it and if we fight it I don't know what to do next. As the meeting they want my partner to arrange is going to be a week later than the deadline set out in our letter before action letter we sent them.

We have no idea what to do for the best at this point. With it coming up to Christmas we could really do with the money

thank you all for your time and advice with this matter xx

[catherinejxx]

Re: Update - ex employer not paying last wage - received a letter from them advice pl

I don't think an unfair dismissal would be an option because he has only worked there for a few months. I don't think he wants to go back to work there as they have been very very nasty in the hole situation and he has a work trial for another job we just want what's owed to us. If they have some photographs of the pies inside his bag and they told the police what they say happened whats to stop the police believing this and arresting him? I do agree about the CCTV surely they would have done it by now as it has been a month since he ws suspended.
I just don't know what our next step Should be.

Thank you bluebottle for your help x

[bluebottle]

Re: Update - ex employer not paying last wage - received a letter from them advice pl

The alleged evidence of the pies in his bag is not, itself, conclusive evidence of theft. The onus of proof lies on the employer. If he paid for the pies, they are his property. You cannot steal your own property. Let the employer provide the evidence that the pies were their property. If they can't, they're up Crap Creek without a paddle.

[MissFM]

Re: Update - ex employer not paying last wage - received a letter from them advice pl

[QUOTE]

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. [/QUOTE

]

The above is Charity from your other thread - and there are further posts on there explaining the difference between "wrongful" and "unfair" dismissal. Can you lay out your OH's entitlement in a simple and factual way (ie hours worked, unpaid wages due @ £... per hour, Holiday pay due @ £ pro rata for xxx days worked and send them an invoice? Or go ahead with your court claim? People on here can help you check the accuracy of your calculations.

[Galahad]

Re: Update - ex employer not paying last wage - received a letter from them advice pl

Also, just to reinforce something that the employer should know about, if this is in a retail environment, its only theft if your partner has passed all avenues of payment (i.e. walked past the last checkout before the exit) and made no attempt to pay.

The pies actually haven't left the premises, therefore there is no 'theft' at this stage, it only becomes theft after they have left company premises.

[bluebottle]

Re: Update - ex employer not paying last wage - received a letter from them advice pl

I don't think an unfair dismissal would be an option because he has only worked there for a few months. I don't think he wants to go back to work there as they have been very very nasty in the hole situation and he has a work trial for another job we just want what's owed to us. If they have some photographs of the pies inside his bag and they told the police what they say happened whats to stop the police believing this and arresting him? I do agree about the CCTV surely they would have done it by now as it has been a month since he ws suspended.
I just don't know what our next step Should be.

Thank you bluebottle for your help x

Employers work on the highly unreliable and potentially dangerous precedent - in the legal sense - of Reasonable Belief. When it comes to allegations of alleged dishonesty, an employer would need to exercise considerable care in how they dealt with such incidents. Accusing someone of dishonesty is a very serious matter indeed and evidence needs to be a lot more than mere belief. Accusing another of dishonesty is attacking their integrity and trustworthiness and has the potential to cause considerable damage to a person's character and reputation.

Under English Law, a person is innocent until proven guilty. Unless the employer can produce evidence to substantiate their allegations beyond all reasonable doubt, the CPS will bin the case. There is also something called the Ghosh Test, which is used to determine dishonesty. Both parts of the test have to be satisfied for dishonesty to be proven. This matter does not satisfy either part of the test.

The onus of proof lies wholly on the employer. Pressure needs to be brought to bear on them to produce substantial evidence if they have not already done so. Employers who have made false or wrongful allegations of dishonesty against employees, in the past, have found out just how costly it is, not only in financial terms, but the damage done to their reputation as employers and commercially.