Abuse of Process?

[ionfly]

Hi folks,

I am involved in a dispute over unpaid wages and unpaid holiday entitlement, which I am considering as unlawful deduction of wages (following 2014 'False Self Employment' legislation).

ABUSE 1:
I sent a formal letter of grievance to my previous employers asking for the outstanding wages, but not the holiday pay. When this was ignored, I contacted ACAS and attempted to go through the conciliation process. I notified them at this stage about the holiday entitlement, although this too was ignored. I put a claim in for unpaid wages and unpaid holiday entitlement which effectively doubled the claim. Does this count as an abuse of process?

ABUSE 2:
After I put the claim into the small claims court, my employers got in touch. They said they would agree to pay the outstanding wages provided I sent them written confirmation that this was a full and final settlement. I agreed to this, but foolishly sent them a judgement by default through the post instead. Of course they have applied to have the judgement set aside.

Although I know the second abuse is an abuse of process, I am still confident of the merits of my case. With this kind of abuse, would the defense have grounds to have my claim struck off, in your opinion? How serious is something like this?

Any help much appreciated, as always.

Regards,

Mark

[ionfly]

Re: Abuse of Process?

Anybody?

[leclerc]

Re: Abuse of Process?

I'm game, what grounds have they asked for it to be set aside? Why did you send the default judgement if you had agreed albeit, verbally a settlement?

Did they ever put their settlement in writing to you?

[ionfly]

Re: Abuse of Process?

Nice one, many thanks...

I sent them a judgement in default because I was annoyed after months of late payments, and having been ignored at mediation stage. It was dumb, but wanted to give them a taste of their own medicine. All comms were via text & e-mail, so nothing officially binding as I understand it, but in writing so provable none-the-less.

They have requested that it be set aside on the grounds that works (snagging list) were not completed and a disk cutter went missing. As I understand it, wages cannot be deducted for poor performance unless expressly stated in the contract (which there is none) or written permission is given by the party in question, which it was not. Works were completed for our part, although skilled works were not as trades refused to complete snagging because they had not been paid. The disk cutter went missing after it was left with security over the weekend, and there is categorically no evidence to say that we were either negligent or complicit in its disappearance.

(When I say 'we' I am talking about a general labourer and ground worker paid through CIS but subject to high levels of supervision and/or control (or right to such) and obligation to provide service in person (minimal or no substitution).)

As I understand the 2014 legislation regarding 'false self-employment', workers can be paid through CIS and classed as self-employed for tax purposes, but subject to certain conditions that would class them as employee or worker for employment purposes, meaning they would be subject to the same employment rights as that of a worker/employee.

[wales01man]

Re: Abuse of Process?

If they can accuse you about the disc cutter they may well decide to call in the Police and accuse you of theft easy for them to do to get back at you?
how much did you obtain the claim for ?

[ionfly]

Re: Abuse of Process?

The claim was lodged for 60 quid as it's just under a grand. Alot of people would let it go, but it's the principal of the thing. Also interesting to learn about legal procedures etc, should anything crop up in the future...

I think that's the point about the disk cutter, they would need to launch a criminal investigation and get the police involved. Seems to me like more of a scare tactic than a credible counter claim as they have no evidence of wrong doing. They can point the finger all they like, but it doesn't hold any water without proof.