Employer witholding final pay / holidays

[Mollster]

Hi All,

First post so please bear with me. I am posting on behalf of my partner who is chasing his previous employer for outstanding wages.

My OH's work was taken over by a new company at the March (pub / restaurant) working conditions deteriorated drastically straight away, Cut OH's from full time (40 /45 hrs a week) to 25 hours, employed a part time chef for the weekend, advised OH that his shifts would be 12 -3 / 6 Monday to Friday only. OH raised concerns straight away, advised that cut in hours and employment of another chef was not required especially as management advised they weren't making any money. New chef worked for management previously and is a member of the managements family so we believed there was preferential treatment and an effort to make my OH leave.

There were numerous issues with weekly pay, only into the bank once, rest paid cash, never on time and staff having to constantly chase for wages. Also my OH was emergency taxed for 6 weeks despite numerous requests for this to be resolved, the accountant was blamed.

My OH secured full time employment at another establishment and provided management with letter of resignation and provided a weeks’ notice as per agreement with previous owners. within the resignation letter, he asked to be provided with written confirmation of outstanding monies due to me along with confirmation of accrued holidays and update provided in relation to the higher than normal rate of tax and national insurance being deducted from pay.
On his final day he requested confirmation as to when I would be paid final wages and accrued holidays, he was advised that funds were not currently available to pay him and details were also not available in relation to outstanding holidays or update on the higher than normal deductions of tax and national insurance. He agreed with management that he would come in on Monday 4^th May to collect final wages along with payment for accrued holidays. He attended as arranged the following week and was again advised that wages were still not available due to insufficient funds and he would need to come in again to collect these.
He has attended the establishment between 1 to 2 times a week to collect outstanding wages and have been unsuccessful in obtaining these. Reasons provided by management have ranged from insufficient funds, no access to the safe as another member of management has the safe keys, Wages removed from pay packets to pay other bills etc.
The final straw was last week where he went into discuss his concerns, however this has once again proved unsuccessful as the management on duty refused to discuss this issue with him.

I took advise from a union rep in my work who advised we put our concerns in writing (basically outlined the above) and offered them 7 days from date on the letter to arrange a meeting or resolve the issue by paying up. Letter was sent recorded delivery and tracked daily from initial delivery attempt on Thursday am and surprise surprise the letter could not be delivered and they have failed to pick it up from the post office.

We have calculated that the owe my OH over £300 and we also believe they were deducting tax and NI but not paying it to HMRC. We have been in a similar position re non payment of tax and NI previously (it appears to be a common issue in this industry).

Where do I go from here, Is ACAS my next steps? Any help or advise would be gratefully appreciated/

Thanks for reading

[teaboy2]

Re: Employer witholding final pay / holidays

Hand deliver the the letter! Take a witness to witness the letter being delivered who can provide a witness statement to that effect too.

Then if after 7 days, and nothing is forth coming, contact ACAS and start making a claim, or you can issue a small court claim, but then you would need to know the precise amount that is owed - So acas would probably be the better option.

Also the cut in hours, was this agreed by OH or forced on him. If forced on him, what did his original contract with previous owner give as his working hours per week. Your OH will have been subject to TUPE protection, when his employment was transferred to new employer!

[Mollster]

Re: Employer witholding final pay / holidays

Hi Teaboy2

Thanks for your response and apologies for not responding to you sooner.

I never thought that it would be a good idea to hand deliver a letter into the his previous place of work. We will do this at the weekend with an independent witness, will a friend be suitable?

We will be able to work out his final wages along with accrued holidays without too much hassle, do you recommend the ACAS route first?

In relation to the drop in hours, for the want of a better word forced on him, they just advised him one week that they were cutting his hours, no discussion etc. I have a letter advising he was being tuped over to the new company. There was never any contract but he had worked in a number of different units for the previous company as a full time chef (40/45hrs). Am I right in thinking that his on going work pattern of 40/45 hrs a week would be deemed as normal.

[teaboy2]

Re: Employer witholding final pay / holidays

Hi Teaboy2

Thanks for your response and apologies for not responding to you sooner.

I never thought that it would be a good idea to hand deliver a letter into the his previous place of work. We will do this at the weekend with an independent witness, will a friend be suitable?

We will be able to work out his final wages along with accrued holidays without too much hassle, do you recommend the ACAS route first?

In relation to the drop in hours, for the want of a better word forced on him, they just advised him one week that they were cutting his hours, no discussion etc. I have a letter advising he was being tuped over to the new company. There was never any contract but he had worked in a number of different units for the previous company as a full time chef (40/45hrs). Am I right in thinking that his on going work pattern of 40/45 hrs a week would be deemed as normal.

Yes a friend is fine.

Yes 40/45 hours would be deemed his contracted hours via customary practice i.e he'd worked them for 12 months or more (including time working for previous owner prior to tupe). They can not cut his hours unilaterally as his hours amount to a contractual term, therefore the way they went about it amounts to breach of contract, as he resigned he can claim constructive dismissal too, on the grounds they unilaterally cut his hours and it therefore amounted to breach of contract and was a considerable drop in income to his and his families financial detriment, placing you financial hardship as a family. The fact they employed another chef to work the hours they cut from you OH is evident they had no need to cut his hours let alone employ another chef to work them, the fact the other chef is related to the new management.

Yes go via ACAS especially since its a constructive dismissal claim as well as unauthorised deductions, also make sure ACAS know he was tuped over too to the current owners.

[Mollster]

Re: Employer witholding final pay / holidays

Hi teaboy2

Thanks for your response and information re constructive dismissal aspect, We hadn't thought of that at all. We had noted in his resignation one of the main reasons he was leaving was due to the cut in hours. I contacted ACAS today and they have advised we need to go through the early conciliation process first and to get the ball rolling with this ASAP.

On an aside I checked track and trace today and the letter had finally been picked up from Royal Mail but as thought no contact has been made to try and resolve this.

[teaboy2]

Re: Employer witholding final pay / holidays

Hi teaboy2

Thanks for your response and information re constructive dismissal aspect, We hadn't thought of that at all. We had noted in his resignation one of the main reasons he was leaving was due to the cut in hours. I contacted ACAS today and they have advised we need to go through the early conciliation process first and to get the ball rolling with this ASAP.

On an aside I checked track and trace today and the letter had finally been picked up from Royal Mail but as thought no contact has been made to try and resolve this.

Ok do as ACAS state to get the ball rolling, then wait 7 days from date the letter was finally picked up by them, to allow them time to respond. And certainly give the constructive dismissal claim ago as well as with held holiday pay and unauthorised deductions under section 13 employment rights act 1996 for the wages being with held!