Ex-employer filling claim against me for holiday and breach of contract!

[ab2016]

Hi all,

Hopefully I can pick your brains with my crazy situation that I've found myself in.

I recently resigned from my role of 2.5 years on 31st March 2016 - The Backstory: I intercepted various emails stating that I was to be replaced and that they already had someone to replace me. This was also solidified by barrage of unfair warnings without hearings and unheard appeals in the coming months. They didn't want me there so I left.

I provided a resignation letter to my line manager. I worked the day, had goodbye drinks, and left.
I received an email on the 19th April 2016 stating that they were not able to adjust my final pay resulting in an overpayment of 7 days holiday, total amount £495.42. "Can you please let me know when we will expect payment?" is what they stated.

I called in the office asking for a breakdown of holiday as I didn't take off 7 days (I had 3 days off sick which coincided with the bank holiday). They said they would send it over but I have received nothing.

I received a text message from my director on Tuesday 3rd May 2016 stating he has checked the company account and no money has been transferred in from me so (in his own words), "I have done a total on the amount that you owe for overtaken holidays and have also included what I feel is a reasonable amount for you not working your notice period..." to cut a long text short he's is taking me to court for £12244.29!

He concluded with, "I feel this is a fair reflection on the losses we have had occur from you walking away from your job."

I actually don't know what to do or say and i'm quite distressed by all of this. I called the office and was told on various occasions that he was in a meeting and would call me back which he never did. I spoke to my old line manager and he said he knew nothing of the situation. At 7.26pm on the same day I received a text from my director simply stating, "Filing now - see you in court".

Any advice on this would be very welcome please.

Thank you in advance.

[charitynjw]

Re: Ex-employer filling claim against me for holiday and breach of contract!

Hi ab2016 & welcome to LB.

There's possibly a counter claim for constructive unfair dismissal.
Have you raised a grievance?
Also you could ask ACAS to mediate - it will 'freeze' the usual 3 months minus 1 day rule for ET claims.

I'll give [MENTION=77627]Openlaw15[/MENTION] a nudge.

[Openlaw15]

Re: Ex-employer filling claim against me for holiday and breach of contract!

Hi all,

Hopefully I can pick your brains with my crazy situation that I've found myself in.

I recently resigned from my role of 2.5 years on 31st March 2016 - The Backstory: I intercepted various emails stating that I was to be replaced and that they already had someone to replace me. This was also solidified by barrage of unfair warnings without hearings and unheard appeals in the coming months. They didn't want me there so I left.

I provided a resignation letter to my line manager. I worked the day, had goodbye drinks, and left.
I received an email on the 19th April 2016 stating that they were not able to adjust my final pay resulting in an overpayment of 7 days holiday, total amount £495.42. "Can you please let me know when we will expect payment?" is what they stated.

I called in the office asking for a breakdown of holiday as I didn't take off 7 days (I had 3 days off sick which coincided with the bank holiday). They said they would send it over but I have received nothing.

I received a text message from my director on Tuesday 3rd May 2016 stating he has checked the company account and no money has been transferred in from me so (in his own words), "I have done a total on the amount that you owe for overtaken holidays and have also included what I feel is a reasonable amount for you not working your notice period..." to cut a long text short he's is taking me to court for £12244.29!

He concluded with, "I feel this is a fair reflection on the losses we have had occur from you walking away from your job."

I actually don't know what to do or say and i'm quite distressed by all of this. I called the office and was told on various occasions that he was in a meeting and would call me back which he never did. I spoke to my old line manager and he said he knew nothing of the situation. At 7.26pm on the same day I received a text from my director simply stating, "Filing now - see you in court".

Any advice on this would be very welcome please.

Thank you in advance.

On the basic facts you present: He is taking you to court for his apparent losses. Are these losses proportionate, has he lost 12k for your resignation? The court will drag him through hot coals if he's exaggerated the losses. In any event, you potentially have a counter claim for possibly constructive dismissal (as Charity, the smarty, spotted, above) under the Employment Rights Act 1996. It is constructive dismissal because your job was being offered to someone else and you quite rightly were not going to stay around and wait for the push. Your evidence is the work emails and are admissible (you can use it) in court. Have you made a copy of these, if so the court will see that you did what any other employee would do who was being replaced. However, did you break company rules by access the emails that you were not granted permission to see? If so, the employer's lawyer will argue that the emails are inadmissible as they were accessed without permission. Your counter argument is by not being able to use them in evidence will deprive your right to a fair hearing.

[ab2016]

Re: Ex-employer filling claim against me for holiday and breach of contract!

Thank you both for replying so promptly.

I have copies and screen shots with the emails.
We use a old CRM called Sugar which allows all employees to view incoming emails from all our colleagues. This is because if someone is out of office we can access their emails and attend to any work in their absence. I intercepted this email in November 2015 and confronted both my line manager and director about this - it was brushed off as "letting off steam" which i didn't agree with. I continued in my job while looking for another position but I haven't been successful in finding one yet. But after the final warnings and such that they started throwing my way I decided I cant take it anymore and resigned. I asked my other colleagues if they had received any written or final warnings (as they had worse figures than me) and they replied know. It was clear that thier aim was to manage me out - which I stated in my appeals.

As for losses - I left so I'm not sure what he lost because of me. He stated that I had a target of £5000 to hit as I had to sell sponsorship for a survey coming up in April. I didn't realise that once leaving I would be then made liable?! I felt it was ridiculous! I was happy to pay for any holiday/sickness I owed, I merely wanted a a breakdown and proof. But I was met with this.

[charitynjw]

Re: Ex-employer filling claim against me for holiday and breach of contract!

Holiday pay must also now include commission

Lock v British Gas Trading Ltd (though this is on appeal to the Court of Appeal, due to be heard later this year)

@Openlaw15 - any thoughts on how this will affect the current judgment/precedent?

[Openlaw15]

Re: Ex-employer filling claim against me for holiday and breach of contract!

Holiday pay must also now include commission

Lock v British Gas Trading Ltd (though this is on appeal to the Court of Appeal, due to be heard later this year)

@Openlaw15 - any thoughts on how this will affect the current judgment/precedent?

Charity, it's a statutory right that 'wages' include commission: s.27 (1 (a), Employment Rights' Act 1996. Holiday pay is a part of wages. However wages can be made up of a basic wage and commission. So any claims by the employ includes basic wage and commission losses, However, the employer is claiming damages against the employee based on contractual terms, probably 'expectation loss. So if commission is part of an employee's wages it could be used as an argument that commission is a term of the contract. However a target is not necessarily a loss as there is no guarantee that a target could be hit. Damages (ie for losses) must have a particular value, is £5000 too speculative (ie uncertain or exaggerated?). Commission could vary from situation to situation, consumer to consumer for instance. The employer would also need to prove breach of contract first of all. There may potentially have been a breach as the employee left the company, however he also needs to prove causation (ie link for his losses to the employee's breach). Hmm

[charitynjw]

Re: Ex-employer filling claim against me for holiday and breach of contract!

[MENTION=77627]Openlaw15[/MENTION]

It could be seen that the employer caused the breach, & the breach was accepted by the employee, who then terminated the contract.
Implied term of mutual trust & confidence.
(Courtaulds Northern Textiles Limited v Andrew [1979] IRLR 84, EAT).

[Openlaw15]

Re: Ex-employer filling claim against me for holiday and breach of contract!

@Openlaw15

It could be seen that the employer caused the breach, & the breach was accepted by the employee, who then terminated the contract.
Implied term of mutual trust & confidence.
(Courtaulds Northern Textiles Limited v Andrew [1979] IRLR 84, EAT).

Hmm, an anticipatory breach if the employee anticipates the employer is about to breach so ends the contract. On the facts though, is the employee resigning by way of an anticipatory breach, ie is the Op expecting the employer to breach the contract? Alternatively, could the OP rely on frustration as a defence, for instance their employment could no longer continue under the threat of that the work was soon coming to an end?

[ab2016]

Re: Ex-employer filling claim against me for holiday and breach of contract!

I'll sit and wait for the paperwork to come through - is there anyway of checking if this has actually been files yet? He said he filed this on Tuesday...

[charitynjw]

Re: Ex-employer filling claim against me for holiday and breach of contract!

Hmm, an anticipatory breach if the employee anticipates the employer is about to breach so ends the contract. On the facts though, is the employee resigning by way of an anticipatory breach, ie is the Op expecting the employer to breach the contract? Alternatively, could the OP rely on frustration as a defence, for instance their employment could no longer continue under the threat of that the work was soon coming to an end?

Either would probably be relevant.
Of course, we don't know what the employer will say (ie whether there is some other reason for the dispute).
A Grievance and/or ACAS mediation might winkle that out.