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

[bluebottle]

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.

Absolutely, Galahad. It appears the young man had already paid for the pies two days before and forgotten to take them home with him. So, they are his property, not the employer's. If you ask me, the employer is heading for a bloody good hiding, in the legal sense. What they have claimed they are doing and intend to do smacks of desperation and knowledge that they are :censored:, know they are :censored:, but hope no-one notices.

[catherinejxx]

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

Oh wow I didn't think it would be like that.
Thanks you all so much for that insight.
So basically the so called evidence of the photographs of the pies is not enough to bring a charge against him?
Surely they would treat this as urgent ad would of looked through CCTV before now?
Someone asked me to break down exactly what he worked ad when so to help me with holiday entitlement ?
In June he worked 100 hours
in July he worked 107hours
in August he worked 94 hhours
In September he worked 130 hours
in October he worked 40 hours up until his dismissal on 7th October

I have worked out on direct gov holiday entitlement he should be paid for 58 hours worth of holiday pay.
Can anyone confirm this is correct he is just on minimum wage.
Should I send a letter on Monday stating our dispute against the amount owed and still open claim in court or should I send a letter and wait for a response before opening claim against them? Am I also within my right to request a copy of evidence and witness statements if any that they hold against me ?
Many thanks for everything

X

[catherinejxx]

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

Also just to add it is a retail environment it is a shop and cafe he worked in the pie kitchen, so they can't even class it as theft because they were still on the premises ? X

[catherinejxx]

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

Can he also request to be paid monies owed in the same way previous wages have been paid?
he has always had his wage put into my bank account as he does not have one they are saying they wil give him a cheque this would cause a problem as he could not put it into my account. Would it be deemed reasonable to request it into our bank rather than a cheque ? X

[Galahad]

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

Most important thing is to get monies owed, get a retraction on the accusation of theft and in writing a good reference. Clearly he's not going to go back and work there, and shouldn't if this is how he is to be treated.

At the moment theres nothing to stop them from scuppering future job prospects.

As for the Police and CCTV stuff, sounds like a load of fluff and nonsense to get your partner to avoid going back there, and then they'll probably feel obliged not to pay him anything.

Sounds like a STERNLY written letter from a solicitor should be employed to stop this ******** forthwith, he hasn't stolen anything, even if he had stolen anything, he hasn't left the premises, and the photo of the pies on the bag are not proof of theft, they are simply proof of two pies in a bag, it says nothing of how they got there, theres no evidential trail or proof of where the pies were taken from, by whom and how they got into the bag, and most important the 'mens rea' of exactly what was the intention with the pies.

Police and CCTV is nonsense, and frankly if they did go down that route, they'd have more hassle than they knew what to deal with.

[charitynjw]

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

Regarding a reference, if the employer gives a negative one based on this (or threatens to do so), the tort of negligent misstatement comes into play.

[bluebottle]

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

Regarding a reference, if the employer gives a negative one based on this (or threatens to do so), the tort of negligent misstatement comes into play.

Depending on the circumstances and nature of what an employer writes or threatens to write, it can be somewhat more serious than Negligent Misstatement. It sounds to me that the employer in the OP's case is heading for more hassle than they can handle. They really are being very foolish, indeed and if they think they are being cute or clever, they are not; far from it. I suspect that when harsh reality hits this employer, it is going to come as an awful shock to them that they cannot do what they like or what they think they can get away with and, in common with everyone else, they have to obey the law.

[catherinejxx]

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

this is the letter i have drafted this morning what do you think ?


Monday 11^th November

Your Ref: RJ/ARdis

Dear ____

I write to you in response to your letter dated 7^th November 2013.
I wonder why it has taken so long to write a response when my original letter was signed for on 29^th October, I understand that running a business takes up some of your time but I would expect this matter to be treated with urgency.

You state that I was caught purposefully removing goods from the premises without payment; I ask if you can document this accusation with proof?
Yes you photographed the pies inside of my bag but I ask you if this enough for you come to a complete conclusion?
You would not listen to my explanation and would not give me a chance respond to your accusations.
You stated in your letter that I did not deny this was not the first time I had taken goods this is not true, and you are putting words into my mouth, I did not admit this.
You also state that you are ‘trawling through CCTV’ to gather evidence but surely if the evidence was there as you are so certain it is surely it would be easily accessible to you.

I ask for you to provide me with all evidence that proves I undoubtedly stole the items that you are accusing me of. I have a right to see such evidence and request this to be sent to me within the next 5 days. I also add that as this is a retail environment, theft is only so once the accused has passed all avenues of payment and made no attempt to pay, as the said items have not left the premises there is nothing to class as ‘theft’ at this stage that would only be theft after the items have left the premises. So once again I ask you to provide me with the proof that I have done so intentionally.

I would also like to be sent a copy of the following documents as my previous request has not been satisfied:-

• A copy of your probationary policy.
• A copy of your disciplinary policy.
• Confirmation that I have been dismissed before an investigation has been concluded.

Copies of evidence held and any interview notes from the investigation (an interview into the investigation should have been held with me before dismissal.)


I ask for the above because I was advised by ACAS that an investigation must be fully made before dismissing an employee and as you state in your letter I am dismissed even though you state yourself that your ‘investigation’ is not yet finished. This is going against employment law. I ask for the disciplinary policy because I did not receive anything in writing and don’t believe I would have at all if I had not wrote to you first. Is this your policy?







I do agree with the dates I worked for your company I must of got them mixed up, just to put this in simply terms:-

I started at the end of May.

In June I was paid ____

In July I was paid ____

In August I was paid ____

In September I was paid £____

I cannot be 100% sure about October as I have not been provided with a payslip even though asking numerous times and you telling me you had posted it a few weeks ago, I am also waiting for my P45 which you told me was also in the post weeks ago. You should be aware that is unlawful to withhold an employees payslip and P45 and I have contacted the tax office about it.

So in total I have worked ____ as you say equalling to 459.5 hours in my time working for your company. This equates to 55 hours and 27minutes worth of holiday pay which would be ____. I have worked this out with ACAS, as I worked different hours per week it is worked out by total amount of hours worked within my time at your company. I would ask you to provide me with a copy of your ‘workings’ to show myself and ACAS how you concluded my entitlement to be only 4.5 days. I ask for this within 5 days the same as the other evidence.

With this holiday pay of £342.12 + £255.56 - £7.95 = £589.73

I would appreciate it if you could send payment as soon as possible as it is going to be 3 weeks since payment was due and you are still breaking the law by not paying monies owed.

I request you to pay monies owed in the same way my wage has always been paid via BACS into bank account number ending in___. This is not an unreasonably request I have been advised by ACAS. I ask this is paid by the end of this working week (Friday 15^th October) as it is already seriously overdue and it is outside of the time period given to you in my Letter before Action. You were given 14 days to arrange this and still chose to only reply 3 days before the deadline. I am already withholding court proceedings but will only do to until this end of this working week.

As I’m sure you can appreciate you requesting me to contact you after the 18^th November is seriously over the time period originally set so I therefore ask for you to arrange an earlier time within this week to have a meeting, this will need to be after 5:00pm on a weekday or anytime on the weekend due to my family commitments. As this is a matter of urgency I trust you can accommodate this request.
















So just to summarise:-

I have requested (again)

• A copy of your probationary period policy within 5 days.

• A copy of your disciplinary policy within 5 days.

• Confirmation that you have dismissed me before an investigation has concluded within 5 days.

• Copies of evidence held and any interview notes form the investigation within 5 days.

• Copy of your fully documented proof of holiday entitlement within 5 days.

• My payslip AND P45 that you have withheld since my dismissal within 5 days.

• And payment for £589.73 paid via BACS by the end of this working week.

I’m sure this letter will be treated as a matter of urgency this time.


Yours sincerely

____

is this ok ??

is 5 days enough time to give them as they have already had 14 and today should be the day i open the court claim against them ?

thanks everyone so far xx

[ostell]

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

An additional 5 days is reasonable. Be prepared to start the action using Money Claim online. The receipt of the court forms should concentrate their minds a bit more. The cost is not excessive and is available on the web site.

I've always found that the court form works wonders.

[catherinejxx]

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

An additional 5 days is reasonable. Be prepared to start the action using Money Claim online. The receipt of the court forms should concentrate their minds a bit more. The cost is not excessive and is available on the web site.

I've always found that the court form works wonders.

thank you ostell.

do you think i should open the claims today or give them the five days first? I doubt they going to pay up amounts owed as they seem certain they only owe so much!

I'm glad that ACAS confirmed exactly how to work out holiday entitlement though that was a great help !

does my letter look ok to you ? x

[bluebottle]

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

An additional 5 days is reasonable. Be prepared to start the action using Money Claim online. The receipt of the court forms should concentrate their minds a bit more. The cost is not excessive and is available on the web site.

I've always found that the court form works wonders.

Better and cheaper than Senakot in many cases, I believe.

[Galahad]

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

If they do send you the P45, they are on proper sticky ground, thats it in writing that you were dismissed before the investigation was concluded, it normally wouldn't be written up and sent until all business was finished and the matter dealt with, not during their evidence collation period ffs! :tinysmile_twink_t2:

[bluebottle]

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

this is the letter i have drafted this morning what do you think ?


Monday 11^th November

Your Ref: RJ/ARdis

Dear ____

I write in response to your letter dated 7^th November 2013.

It has come to my attention that you have not responded to my letter to you dated [date], despite you signing for this letter on 29^th October. Unless there is a very good reason for your failure to respond by the date stated in my letter, I cannot understand why you are treating what is a very serious matter indeed with apparent levity.

You state that I was caught "purposefully removing goods from the premises without payment". I have yet to see any credible and real evidence that substantiates this allegation and would question whether such evidence is available.

Whilst you may have photographed the pies inside my bag, this does not, in itself, amount to any evidence of wrongdoing. Indeed, what evidence do you have that any wrongdoing took place at all? At no time would you listen to my explanation and at no time did you allow me to respond to the allegations you were making. You have stated in your letter that I did not deny this and that was not the first time I had taken goods. As you will know yourself, this statement made by you is not true, as I did not utter such words and neither did I admit to anything. You also state that you are ‘trawling through CCTV’ to gather evidence, but, surely, if the evidence was available, as you appear to believe it is, it would be readily-accessible and you would have produced it before now.

I have to require you to deliver up all evidence that proves the allegations you are making against me. I have a right to see such evidence and require you to deliver this up to me within five calendar days of your receipt of this letter. I must add that as this alleged incident occurred in a retail environment, theft would only be capable of proof once all avenues of payment had been passed and no attempt was made to pay. As the said items had not left the premises, where is there evidence of theft and that payment had not been made for the said items? Indeed, how do you know payment had not already been made previously, in which case, the pies were the property of the person who paid for them. Furthermore, until items leave premises, the law does not recognise that to be theft. Also, the courts and Parliament have laid down what does and what does not constitute theft. So, once again, I must require you to provide me with clear and substantial evidence that there is intention, on my part, to remove items from the premises without payment.

I would also like to be sent a copy of the following documents as my previous request has not been satisfied:-

• A copy of your probationary policy.
• A copy of your disciplinary policy.
• Confirmation that I have been dismissed before an investigation has been concluded.

Copies of evidence held and any interview notes from the investigation (an interview into the investigation should have been held with me before dismissal.)

I ask for the above because I was advised by ACAS that an investigation must be fully made before dismissing an employee and as you state in your letter I am dismissed even though you state yourself that your ‘investigation’ is not yet finished. This is going against employment law. I ask for the disciplinary policy because I did not receive anything in writing and don’t believe I would have at all if I had not wrote to you first. Is this your policy?







I do agree with the dates I worked for your company I must of got them mixed up, just to put this in simply terms:-

I started at the end of May.

In June I was paid ____

In July I was paid ____

In August I was paid ____

In September I was paid £____

I cannot be 100% sure about October as I have not been provided with a payslip even though asking numerous times and you telling me you had posted it a few weeks ago, I am also waiting for my P45 which you told me was also in the post weeks ago. You should be aware that is unlawful to withhold an employees payslip and P45 and I have contacted the tax office about it.

So in total I have worked ____ as you say equalling to 459.5 hours in my time working for your company. This equates to 55 hours and 27minutes worth of holiday pay which would be ____. I have worked this out with ACAS, as I worked different hours per week it is worked out by total amount of hours worked within my time at your company. I would ask you to provide me with a copy of your ‘workings’ to show myself and ACAS how you concluded my entitlement to be only 4.5 days. I ask for this within 5 days the same as the other evidence.

With this holiday pay of £342.12 + £255.56 - £7.95 = £589.73

I would appreciate it if you could send payment as soon as possible as it is going to be 3 weeks since payment was due and you are still breaking the law by not paying monies owed.

I request you to pay monies owed in the same way my wage has always been paid via BACS into bank account number ending in___. This is not an unreasonably request I have been advised by ACAS. I ask this is paid by the end of this working week (Friday 15^th October) as it is already seriously overdue and it is outside of the time period given to you in my Letter before Action. You were given 14 days to arrange this and still chose to only reply 3 days before the deadline. I am already withholding court proceedings but will only do to until this end of this working week.

As I’m sure you can appreciate you requesting me to contact you after the 18^th November is seriously over the time period originally set so I therefore ask for you to arrange an earlier time within this week to have a meeting, this will need to be after 5:00pm on a weekday or anytime on the weekend due to my family commitments. As this is a matter of urgency I trust you can accommodate this request.
















So just to summarise:-

I have requested (again)

• A copy of your probationary period policy within 5 days.

• A copy of your disciplinary policy within 5 days.

• Confirmation that you have dismissed me before an investigation has concluded within 5 days.

• Copies of evidence held and any interview notes form the investigation within 5 days.

• Copy of your fully documented proof of holiday entitlement within 5 days.

• My payslip AND P45 that you have withheld since my dismissal within 5 days.

• And payment for £589.73 paid via BACS by the end of this working week.

I’m sure this letter will be treated as a matter of urgency this time.


Yours sincerely

____

is this ok ??

is 5 days enough time to give them as they have already had 14 and today should be the day i open the court claim against them ?

thanks everyone so far xx

Hi Catherine,

I have made a few alterations to your draft letter, but have kept these to the criminal matters. Whether you incorporate these into your final letter is your choice. What I have put is what I would put myself. My background is in Criminal Law.

[catherinejxx]

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

Thank you all for your posts,

Bluebottle I have made the adjustments to my letter and sent it recorded delivery today, I will be checking for a signature on the Royal Mail website tomorrow, I really hope this is sorted by the end of the week the stress is starting to take its toll on me and my hub, Christmas would be a whole lot easier if they had just paid what was owed. I have my fingers crossed though not very hopeful

[bluebottle]

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

Your employer, in my opinion, is behaving in a manner that is akin to playing hopscotch on a minefield. He should, therefore, not be surprised if he finds himself without a leg to stand on. He clearly appears not to have even a basic grasp of how the law works and, certainly, he should have sought advice from a competent legal professional instead of trying to blunder through it himself.