Non-Payment of Wages .... Advice required....

[stav4187]

Hi

I am new here and thought i would ask for advice - I have been employed since 22nd January 2014 and should i repeat should get paid on the 14th Of every month - on the 14th May i received an email from my employer who is a sole trader stating that he has "cash flow" problems and is unable to pay me !!! After much chasing and his rather slow responses i am still waiting to be paid.... its now 2 weeks late.... i have bills etc.... I have contacted ACAS who are due to call him tomorrow....

Since i have been asking for my wages etc... i have received an email stating that he is making me redundant and has given me 1 months notice as long as i work 3 days per week up until 22nd June 2014, however when he never paid me he told me to stop working for him until i received my wages !!! should he still be paying me ??? I do have a contract that i am happy to provide....

I thought an employer should notify you and consult with you if there was to be redundancies ?? is this right.... also should he be paying me whilst i am waiting for my wages ???

Any advice or comments appreciated..

Regards
Stav4187

[teaboy2]

Re: Non-Payment of Wages .... Advice required....

Hi

I am new here and thought i would ask for advice - I have been employed since 22nd January 2014 and should i repeat should get paid on the 14th Of every month - on the 14th May i received an email from my employer who is a sole trader stating that he has "cash flow" problems and is unable to pay me !!! After much chasing and his rather slow responses i am still waiting to be paid.... its now 2 weeks late.... i have bills etc.... I have contacted ACAS who are due to call him tomorrow....

Non payment of wages is a breach of contract as well as a breach of section 13 employment rights act 1996. Keep requesting payment informing him, if he does not pay up within 14 days, you will have no choice but to take the claim to county court and seek enforcement for his breach of contract and non payment of wages - Remind him this can result in a CCJ being issued against any property he owns, or the use of court baliffs to seize property to cover the value of the unpaid wages and court costs.

Since i have been asking for my wages etc... i have received an email stating that he is making me redundant and has given me 1 months notice as long as i work 3 days per week up until 22nd June 2014, however when he never paid me he told me to stop working for him until i received my wages !!! should he still be paying me ??? I do have a contract that i am happy to provide....

As he is in breach of your contract, he can not make you redundant - Put it this way, if he can not afford to pay you wages, wheres he going to get the money for the extra weeks redundancy pay and your holiday entitlement? Not only that, making you redundant under such circumstances would be automatic unfair dismissal (Not the same as unfair dismissal), i believe, and qualifying period to tribunal would not apply. Yes please provide the contract for us to review, but remove any personal details relating you yourself and to the employer.

I thought an employer should notify you and consult with you if there was to be redundancies ?? is this right.... also should he be paying me whilst i am waiting for my wages ???

Employers only need to have consulting period if they are making 20 or more employees redundant, he merely needed to provide you with a notice in your case, which he has done, even thought the redundancy would still be automatic unfair dismissal. Whether you carry on working or not is up to you though, but if hes really having problems with cash flow, i doubt you will get paid for that either.

Any advice or comments appreciated..

Regards

Can you provide details as to your employment, industry, employment status (Self employed (pay your own NI and Tax), fixed term etc).

Also you said you started on 22/01/2014 and payment of wages was supposed to be on the 14th each month. were you paid month in lieu? did you get paid on time in March and April?

Rest of my questions will likely be answered by your contract once you post a copy up.

I have also asked the site team to remove your name from the end of your post too, as its recommend in order to protect your identity that you do not post your name or names of employers on to the site, in a public thread.

[stav4187]

Re: Non-Payment of Wages .... Advice required....

TeaBoy 2 - that is great many thanks - i am preparing an email to my boss as we speak.... however before i send it i have added a copy of my contract with all sensitive parts blanked out - your comments again appreciated... i am only working part time at the moment but i think you will get the basics from looking at the contract....

Thanks in anticipation.....

[teaboy2]

Re: Non-Payment of Wages .... Advice required....

TeaBoy 2 - that is great many thanks - i am preparing an email to my boss as we speak.... however before i send it i have added a copy of my contract with all sensitive parts blanked out - your comments again appreciated... i am only working part time at the moment but i think you will get the basics from looking at the contract....

Thanks in anticipation.....

Right you are an employee and not self employed, which is good. So go ahead with the email, though post up a draft here first before emailing it, that way we can add bits or take out bits that are not relevant. Basically to make sure you don't say anything you shouldn't etc.

May i ask what industry you work in? As i noted one reason for termination of the contract would be if you the employee became bankrupt!

[stav4187]

Re: Non-Payment of Wages .... Advice required....

TeaBoy 2 once again many thanks - the industry is Marketing - it is an IT marketing firm, basically the company represents clients in various sectors and makes contact with companies to see if they may be evaluating software....

Ok here is a draft of the letter I will send....

Dear ***

As you are aware I should have received my wages from you on the 14th of each Month, on the 14th May 2014 at 0837hrs you sent me an email stating that you had "cash flow" issues and were not in a position to pay me as stated in my contract which was signed on the 22nd January 2014.

Non payment of my wages is not only a breach of my contract BUT is also a breach of section 13 of the employment rights act 1996.

On the 14th May 2014 I emailed you stating that if payment of my wages were not received within 7 days (21st May 2014) that i would then commence proceedings against you. Please be aware that I have now instructed ACAS to take on this case for me, further more I will have no choice in taking my case to County Court and seek enforcement for your breach of contract and non payment of wages, this can result in a CCJ being issued against you or the use of court bailiffs to seize property to cover the value of unpaid wages and costs.

I also received an email from you on the 22nd May 2014 stating and I quote :
"In light of the present situation, it is with deep regret that I must give you a month’s notice of redundancy of your employment from TriWonder Data with immediate effect. I know that we were just starting to get things off the ground but I can see that my strategy for the business has to change."
PLEASE NOTE that as you are in breach of my contract you cannot make me redundant, the reason for this is that due to you breaching my contract redundancy under such circumstances is classed as "automatic unfair dismissal".

Kind regards
***

[teaboy2]

Re: Non-Payment of Wages .... Advice required....

TeaBoy 2 once again many thanks - the industry is Marketing - it is an IT marketing firm, basically the company represents clients in various sectors and makes contact with companies to see if they may be evaluating software....

Ok here is a draft of the letter I will send....

Dear ***

As you are aware I should have received my wages from you on the 14th of each Month, on the 14th May 2014 at 0837hrs you sent me an email stating that you had "cash flow" issues and were not in a position to pay me as stated in my contract which was signed on the 22nd January 2014.

Non payment of my wages is not only a breach of my contract BUT is also a breach of section 13 of the employment rights act 1996. And breach of section 104 of the same Act i.e. The employee asserting a statutory right to being paid wages owed under the contract of employment.

On the 14th May 2014 I emailed you stating that if payment of my wages were not received within 7 days (21st May 2014) that i would then commence proceedings against you. Please be aware that I have now instructed ACAS to take on this case for me, further more I will have no choice in taking my case to County Court and seek enforcement for your breach of contract and non payment of wages, this can result in a CCJ being issued against you or the use of court bailiffs to seize property to cover the value of unpaid wages and costs.

I also received an email from you on the 22nd May 2014 stating and I quote :
"In light of the present situation, it is with deep regret that I must give you a month’s notice of redundancy of your employment from (Company Name Removed) with immediate effect. I know that we were just starting to get things off the ground but I can see that my strategy for the business has to change."
PLEASE NOTE that as you are in breach of my contract you cannot make me redundant, the reason for this is that due to you breaching my contract redundancy under such circumstances is classed as "automatic unfair dismissal" - Plus, as you have not paid me for wages due on the 14th of May 2014 i find it very unlikely that you would pay me all accrued Holiday entitlement, Payments owed in commissions/bonuses (if due (List those that are due, and will become due)), Payments in Lieu (if due (again list any payments in lieu)) and off course the statutory 1 weeks (change to half week if you are under 22 years old) redundancy payment. All of which would become due upon redundancy on top of wages owed as of the 14th May 2014!

Kind regards
***

Add bits in red above

Rest of the email is fine.

On a side note, as this doesn't efftect you situation. The clause about terminating the contract when Employee becomes bankrupt, would be invalid in law, as your industry would have to be financial industry and not Marketing industry, for such term to be validated and fair.

P.s. best remove the company name too, not from the email, but from the post in this thread you just made containing a draft of the email.

[stav4187]

Re: Non-Payment of Wages .... Advice required....

TeaBoy 2 - thanks again - i will let you know the response i get....

[teaboy2]

Re: Non-Payment of Wages .... Advice required....

I made an additional change in red at the start of the draft email, which makes it impossible for the employer to argue that they can make you redundant under present circumstances and also proves it is automatic unfair dismissal if they did make you redundant. It would also be automatically unfair is their was more than one people in the same position as you and non of them were facing redundancy i.e. only you are being put on notice of redundancy and no one else.

Don't worry if you have already sent the email, as we can add the additional part about section 104 of the employment rights act 1996 in reply to their response, if they which to play silly buggers still.

[stav4187]

Re: Non-Payment of Wages .... Advice required....

TeaBoy2 - i sent the email prior to your update... but i have just had a reply and here it is....

Dear ***

I acknowledge receipt of your latest email.

I understand and sympathise the position that this has put you in and appreciate that you have had to seek guidance on these matters.

I maintain that I am doing all I can to get the money in to pay your wages and I sincerely regret the delay.

I had thought that giving you notice with the offer of 1 month’s redundancy that you would have the opportunity to try and seek other employment in the meantime as I cannot give you any further work.

As a friend, I would rather make you redundant than terminate your contract of employment without any notice.

I appreciate that you probably think that you are not going to see any further monies hence your actions at this time – but I promise you that my intent is to pay you what you are due in terms of the outstanding wages and redundancy pay in order to resolve this matter as quickly as possible, once and for all.

Regards,
***

So what do you suggest ??? would it be worth a reply stating that he should amend my wages owed to include 1 weeks redundancy plus the holiday entitlement that i have built up ???

Regards:tinysmile_cry_t:

[stav4187]

Re: Non-Payment of Wages .... Advice required....

I have also had an update from ACAS stating that they have spoken to my employer and that he has every intention of paying me - he has agreed to pay me 1 months notice of redundancy and wishes for me to email him with what he believes i am owed - this is the letter i am planning on sending.... is it ok???

Dear ***

I can confirm that I have had a call and update from ACAS.


They requested that I notify you of the payments I am due…


Salary outstanding is £699.05

Holiday Entitlement is 25 days per year = 2.08 days per month - I am working an average of 1.61 days per week which = almost 1/3 holiday entitlement due over this period = 3 days holiday pay due at daily rate of £69.23 = £207.69

You have agreed to pay 1 months notice to me so average weekly days = 1.61 days per week = 1.61x52= 83.72 / 12 = 6.97 days on average per month (so 6.5 days redundancy owed at daily rate of £69.23) = £449.99

£699.05 + £207.69 + £449.99 = £1356.73

That is what i am planning on emailing him....:juge:

[stav4187]

Re: Non-Payment of Wages .... Advice required....

TeaBoy 2 - also 1 more question - am i entitled to ask for bank holiday payment on the average weekly working too ??? I have never worked on a bank holiday BUT am i entitled to ask for payment at all ???

Regards

[teaboy2]

Re: Non-Payment of Wages .... Advice required....

Email looks good, i need to read your contract again regarding bank holidays and see if your entitled to be paid holiday for them - What about outstanding bonus/commission that are payable to you or are due to become payable soon? Its in your contract so your entitled to them!

Also in your email ask him to confirm the date your likely to be paid, or when he can make first payment towards you i.e. 1/4 or 1/2 that is owed in total. Tell him because he can not legally make you redundant, he should instead write up a formal notice to terminate employment notice giving 1 months paid notice, where it has been agreed to terminate employment either on xx date or once full amount of outstanding monies owed to yourself including accrued holiday and bonuses/commission payments due (or that may become due).

I'll get back to you shortly about the bank holidays so just hang around for 10 minutes.

[teaboy2]

Re: Non-Payment of Wages .... Advice required....

Right your contract says your entitled to annual 25 days plus bank holidays. It also states if your required to work on a bank holiday that you would be paid double. So your total annual holiday entitlement is not 25 days but 25 days plus bank holidays - Total of 33 days per year (8 Bank Holidays in England per year). He may argue that its only bank holidays that have occurred during your employment, but your contract clearly says 25 days plus bank holidays and makes no mention of only bank holidays term of employment. Though you need to check to make sure he has not already paid you for said bank holidays first.

By the way, in the regards to the post i made above, in the notice of termination, he needs to sign a declaration of mutal consent to terminate employment contract, and also provide the same declaration and space for you to sign and date as well.

Its basically known as a mutual termination of contract agreement (its neither dismissal or redundancy, but notice period must be paid in full). And by the sounds of things, it is probably in your best interest as it sounds like he has taken you on and realised he can not afford to pay you for your work, hence why he said he is unable to offer you more work in the future. And it looks like he rather settle the matter in a amicable and friendly manner, and remain friends with you afterwards.

[stav4187]

Re: Non-Payment of Wages .... Advice required....

TeaBoy2 - as always great advice - i will amend my letter accordingly - yes you are right he cannot afford to pay permanently - i am not due any commission at all so will leave that out of the letter... below is an amended version...

Dear ***

I can confirm that I have had a call and update from ACAS.


They requested that I notify you of the payments I am due…


Salary outstanding is £699.05

Holiday Entitlement is 33 days per year (25 annual leave plus 8 days bank holidays) = 2.75 days per month - I am working an average of 1.61 days per week which = almost 1/3 holiday entitlement due over this period = 4 days holiday pay due at daily rate of £69.23 = £276.92

You have agreed to pay 1 months notice to me so average weekly days = 1.61 days per week = 1.61x52= 83.72 / 12 = 6.97 days on average per month (so 6.5 days redundancy owed at daily rate of £69.23) = £449.99

£699.05 + £276.92 + £449.99 = £1425.96

Please Note: Due to the fact that you are currently in breach of my contract and the fact that you are unable to make me redundant at this time you should draw up a formal notice to terminate my employment with *********************, please draw up and sign a Mutual Consent to Terminate Employment Contract and we will both sign said document (electronically is satisfactory).

I hope the above is ok TeaBoy2......

[teaboy2]

Re: Non-Payment of Wages .... Advice required....

Change "(25 annual leave plus 8 days bank holidays)" to "(25 days plus bank holidays (8 days) annual leave, as per in the contract)"

Also an electronically signed one is not ideal - You need a written one which is signed by hand in ink. You keep the original copy, they keep the photo copy or second copy.