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My Niece not being paid for last 6 weeks work

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fisher
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Re: My Niece not being paid for last 6 weeks work

#390704

Postby fisher » February 27th, 2021, 7:24 pm

I think she would need some documentary proof of the extra hours worked. Even if she has no proof I would be pointing out that extra hours were worked if there is somewhere to put additional comments on the claim forms. If she has no proof then he can deny but it alll goes to paint a picture of the overall regime. I think working excess hours with no documentation is OK if you're getting on with your "employer" annd want to show good will, but there is a limit and if the "employer" is not someone you trust then don't do it. A lesson for the future perhaps.

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Re: My Niece not being paid for last 6 weeks work

#390959

Postby Clitheroekid » February 28th, 2021, 7:42 pm

Firstly, I've not read the whole thread, so this is more in the nature of general rather than specific advice.

I'd strongly recommend that you consider making a pre-litigation settlement offer, so as to avoid the hassle and stress of litigation. It doesn't sound like there's a lot of money at stake, so the said hassle and stress is likely to be disproportionate to the possible `prize'.

It's up to you how much discount you offer, but what I always do in such cases is to build up the case to as high a figure as possible, using every argument you can, even the weak ones. Even though your opponent may see that part of your claim is weak it still has the psychological effect of fixing a high figure in his head, so that if you then offer, say, a 40% discount he will automatically think he's getting a good deal, even though you would never have expected to recover that 40% anyway.

You should definitely claim for the extra hours worked, and don't worry that there's no documentation. The standard of proof is only on the balance of probabilities, and the Tribunal / Court will be on your niece's side in a case like this, so will be quite happy to accept a written witness statement from her verified by a statement of truth (the equivalent of sworn evidence) regarding the time worked. They will tend to blame the `employer' (for want of a better word) for having tried to take advantage of your niece and for failing to keep accurate records.

You also have to bear in mind that the `employer' will know that he's been acting illegally, or at least sailing very close to the wind. He won't want the oxygen of publicity of a public hearing, and he will also want to avoid the stress and hassle, so may well be quite amenable to doing a deal.

If you do make such an offer it's very important that you use the magic words `without prejudice' in the email / letter. This means that he can't produce your offer as evidence to the Tribunal / Court if it ever gets that far.

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Re: My Niece not being paid for last 6 weeks work

#390970

Postby mark88man » February 28th, 2021, 8:22 pm

Thank you ClitheroeKid. I appreciate the advice - this is where keyboard warriors like me lose the plot, namely the nitty gritty end of getting the deal done. We have been Without Prejudicing everything.

I'll get my niece to work out a basis for the costs, then see what is fair - we really just want what's owed, with a little bit of extra so there is a cost to the boss for his actions.

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Re: My Niece not being paid for last 6 weeks work

#390995

Postby Avantegarde » February 28th, 2021, 10:40 pm

mark88man wrote:OK Round 2 over (pretty quickly) - basic points of employer response - quite hardball

* Not going to pay unless discussed F2F
* Will not deal with ACAS (but happy to go to Small Claims court)
* Please stop legal threats and play nice
* The court takes a year and often goes wrong
* Gloating

Reference to better outcome if she's good.


Don't be put off by his bullying attitude which is designed, among other things, to distract you and divert you. I have friends and acquaintances who have had to chase money. They have sometimes found that their adversaries refused to concede until a court judgement had been lodged against them. Sadly, some people refuse to pay in the hope that you will get fed up and go away. You may need to persist.

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Re: My Niece not being paid for last 6 weeks work

#391009

Postby mark88man » February 28th, 2021, 11:33 pm

Thank you Avantegarde - yes I have passed that suspicion along. I think I mentioned above my niece is at home with her parents and can survive without the money for a while - and with the lockdown hopefully lifting I doubt that she will be unemployed for too long.

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Re: My Niece not being paid for last 6 weeks work

#391035

Postby GrahamPlatt » March 1st, 2021, 7:56 am

Pragmatic, lawyerly advice from CK there. But you might take the view that a good dose of publicity is what this “employer” deserves.

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Re: My Niece not being paid for last 6 weeks work

#391266

Postby mark88man » March 1st, 2021, 6:57 pm

so out of the blue - but possibly following on from our reply to his previous email, in which we reiterated our ACAS intent, the director offered to pay an amount just under half the amount outstanding on the invoices (same nebulous claim given as reason for not paying more)

we replied without prejudice if you make it 95% of money owed we'll accept to get it done - which he rejected so we are back to preparing the quick conciliation route (recommended by the CAB) - although we are also working on a settlement letter along the lines suggested by CK. We are targeting this to be about 30% over the total of the owed invoices

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Re: My Niece not being paid for last 6 weeks work

#391323

Postby mark88man » March 1st, 2021, 10:34 pm

And in a real twist to the storyline the director, despite the rejection of his offer has paid about 2/3 of the outstanding amount into my niece's bank account - she has 3 options - accept it and move on, accept it acknowledging it as part payment, or return it.

we are not sure which route to go (although part payment would seem to be best), but I sense at only £500 to go there may not be as much steel to push it further on a diminishing returns basis.

deeply frustrating, but in part thanks to your help I think that she is getting anything

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Re: My Niece not being paid for last 6 weeks work

#391328

Postby Mike4 » March 1st, 2021, 10:48 pm

mark88man wrote:And in a real twist to the storyline the director, despite the rejection of his offer has paid about 2/3 of the outstanding amount into my niece's bank account - she has 3 options - accept it and move on, accept it acknowledging it as part payment, or return it.

we are not sure which route to go (although part payment would seem to be best), but I sense at only £500 to go there may not be as much steel to push it further on a diminishing returns basis.

deeply frustrating, but in part thanks to your help I think that she is getting anything


My gut feeling is to totally ignore this. Just keep the money and press on.

"I've paid 2/3 of the money outstanding" can hardly be put forward as a valid defence. Rather more like paying the 2/3 seems like an admission they agree your niece has a really strong case.

I'd be inclined to press on and go for the full amount, overtime and other add-ons included. If only for the life education. Winning seems so much more likely now provided she does not relax. £500 is still a lot of money and worth arguing over given the groundwork has now been done.

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Re: My Niece not being paid for last 6 weeks work

#391443

Postby fisher » March 2nd, 2021, 11:02 am

I'd say to count his payment as a part payment and to carry on claiming for the rest while you have the momentum.

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Re: My Niece not being paid for last 6 weeks work

#391463

Postby staffordian » March 2nd, 2021, 11:43 am

It does seem as though he's the sort who only responds to threats.

First he thought he could get away with paying nothing.

After persistence from your niece he realises he cannot so tries a half hearted payoff.

Once he realises she's not a soft target, I suspect he'll pay up rather than face a tribunal, conciliation or court action

Typical bully.

So yes. Carry on!

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Re: My Niece not being paid for last 6 weeks work

#391488

Postby dspp » March 2nd, 2021, 12:18 pm

take the 2/3 and carry on pushing for the balance imho.

regards, dspp

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Re: My Niece not being paid for last 6 weeks work

#391518

Postby redsturgeon » March 2nd, 2021, 1:24 pm

Yes if you let him get off the hook now then he has won.

Say thank you very much and continue to chase him for the lot plus some extra to make up for the hassle.

John

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Re: My Niece not being paid for last 6 weeks work

#391604

Postby Gersemi » March 2nd, 2021, 5:55 pm

Does she need to be careful about what wording he has used? Eg if he has described the payment as full and final settlement? As he has paid it directly to her bank account (rather than a cheque that she can chose to bank or not), she can't be deemed to have accepted it, but maybe she needs to make a clear statement that she does not consider it to be settlement of the outstanding monies?

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Re: My Niece not being paid for last 6 weeks work

#392932

Postby mark88man » March 5th, 2021, 10:20 pm

Hello again. An offer of settlement before litigation was sent (without prejudice), noting the part payment and asking for an additional 4 figure sum in terms of holiday pay, extra hours, unpaid earnings and preparation, but including a 40% discount

His reply, (paraphrased) "bring it on" and we will "issue a counterclaim", which is interesting as I don't see what thee is to claim against in an ET1

Ho hum - another week, another twist in the story - but we couldn't have got here without the support this forum so thank you for your help and interest

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Re: My Niece not being paid for last 6 weeks work

#393113

Postby melonfool » March 6th, 2021, 3:08 pm

mark88man wrote:Hello again. An offer of settlement before litigation was sent (without prejudice), noting the part payment and asking for an additional 4 figure sum in terms of holiday pay, extra hours, unpaid earnings and preparation, but including a 40% discount

His reply, (paraphrased) "bring it on" and we will "issue a counterclaim", which is interesting as I don't see what thee is to claim against in an ET1

Ho hum - another week, another twist in the story - but we couldn't have got here without the support this forum so thank you for your help and interest


There is no 'counter claim' to an ET1, so that would be interesting.

I often have clients who, when faced with tribunal, attempt to tell me all the wrongs the employee did five years ago as if that somehow mitigates their unlawful non-payment or discriminatory act. It doesn't. In an unfair dismissal claim (not relevant here, but for context) there can be 'contributory behaviour' though, which can limit an award on a successful claim by up to 100% - so you can win, but get nothing. Also, failure to follow the ACAS Code can increase an award on an employer by 25% but, lesser known, can *reduce* an employee award by the same if they did not follow the Code or did not act reasonably in enabling the employer to follow the Code(usually only if the respondent puts this in to the remedy hearing).

Also, I wouldn't worry about doing an ET1 for a 'small amount' - I have a client getting himself in a twist over a claim for £47*. He's paid me about 10x that in advising him so far <eyeroll>. And the case has been postponed so it will run on for about another year by which time everyone will have forgotten what the £47 was for anyway.

Mel


(* while the claim itself is for £47 there is an underlying claim that I don't think the claimant, or their rep who is the union, is actually aware of but a judge would spot very quickly so it is one where we need to avoid the tribunal - hence the level of advice from me, but also, they don't actually owe the £47 and he hates 'settling' with current employees for money they are not due as he thinks, probably rightly, that they will just come back at him time after time)

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Re: My Niece not being paid for last 6 weeks work

#393339

Postby mark88man » March 7th, 2021, 1:34 pm

melonfool wrote:There is no 'counter claim' to an ET1, so that would be interesting.

I often have clients who, when faced with tribunal, attempt to tell me all the wrongs the employee did five years ago as if that somehow mitigates their unlawful non-payment or discriminatory act. It doesn't. In an unfair dismissal claim (not relevant here, but for context) there can be 'contributory behaviour' though, which can limit an award on a successful claim by up to 100% - so you can win, but get nothing. Also, failure to follow the ACAS Code can increase an award on an employer by 25% but, lesser known, can *reduce* an employee award by the same if they did not follow the Code or did not act reasonably in enabling the employer to follow the Code(usually only if the respondent puts this in to the remedy hearing).

Also, I wouldn't worry about doing an ET1 for a 'small amount' - I have a client getting himself in a twist over a claim for £47*. He's paid me about 10x that in advising him so far <eyeroll>. And the case has been postponed so it will run on for about another year by which time everyone will have forgotten what the £47 was for anyway.

Mel


(* while the claim itself is for £47 there is an underlying claim that I don't think the claimant, or their rep who is the union, is actually aware of but a judge would spot very quickly so it is one where we need to avoid the tribunal - hence the level of advice from me, but also, they don't actually owe the £47 and he hates 'settling' with current employees for money they are not due as he thinks, probably rightly, that they will just come back at him time after time)


Thank you melonfool - I am truly being given an education here. I'm not sure if you read the whole thread - its quite long now, but the ET is on the basis of contract but actual worker rather than full time employee which means we have that to get over that hurdle in the empoyers mind as well. I have been super busy last week finishing my work project yesterday, but I am going to chat with my Niece when my OH calls her sister later today, and we will go through the options. I will recommend going for the ET1 but maybe getting some CAB help to do that, as there are bound to be ways of expressing all the above, that a bit of experience will be essential rather than helpful for

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Re: My Niece not being paid for last 6 weeks work

#393366

Postby melonfool » March 7th, 2021, 3:55 pm

I did read the whole thread.

I'm not sure the Uber case helps you much as it turned on some very specific facts but as it is so recent it may well be in the mind of this 'employer' so it's good from that perspective, same with a judge I guess.

This is useful re Uber: https://www.youtube.com/watch?v=wDUVQjNxkr4

It's clear to me that niece is a worker, if not actually an employee - but for your purposes (getting the outstanding money paid) worker will do.

This is the original case that decided how to determine a worker, and the judge in this case was very clear that the words in the contract mean nothing if the actuality of the situation is that they are really a worker (or even employee): https://www.employmentcasesupdate.co.uk/site.aspx?i=ed8808

The Govt portal is really designed for slightly different situations than you describe here and relies very heavily on the sub clause, which in court is not relied upon anywhere like as much. This is helpful though: https://www.gov.uk/employment-status/worker

The claim you need to make at ET is unlawful deduction from wages (essentially this is the claim for failure to pay wages due). But you need to work out when this money was due and claim three months minus one day from that date to be in time. This is a strict time limit (there have been a few cases recently where that has been challenged but really it's still unusual for them to be extended, I won last year in getting an out of time case dismissed, in one of the first remote hearings on 23rd March!).

You have far longer for a MCOL so if the ET fails, they says she is not a worker but is self-employed, than that route would still be open to you.

I have seen many firms trying to get people to accept these types of 'self employed' contract, they seem to only do it to young people......(hmmm...age discrimination....) and hopefully the publicity around the Uber case will mean they think twice about it as it's so unfair.

In some ways I suspect this chap will be more worried about an ET than about a MCOL, and given he has capitulated to an extent it's likely he will pay up I'd say.

Good luck!

Mel

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Re: My Niece not being paid for last 6 weeks work

#393402

Postby mark88man » March 7th, 2021, 5:49 pm

Thank you again Melonfool. I can confirm we are well within the timescales, but I will check with my niece about the date of the earliest unpaid invoice to ensure we work well within that deadline

I will catch you all up with details later, but may be a few days now as we need to give the ET the proper attention it deserves.

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Re: My Niece not being paid for last 6 weeks work

#395618

Postby mark88man » March 15th, 2021, 7:02 am

Two bits of Tactical Advice Please on the ET1 form. (https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/954478/et1-eng.pdf)

Q2.3 - "Do you have ACAS early conciliation number". The reasons below don't include employer non cooperation can I just write this in. I think its too late to start getting one given timescales

Q4.1 is cases where respondent was not your employer - should I be typing in there the summary "pay me as a worker" claim (but which would suggest not an employee) - OR - do I fill in Q5/6/7 as if "regular" employee

Thanks - sorry for delay - its been busy for me. We have 4 weeks left. The rest of the claim is just built from previous letters and is looking good, although niece has to add some fine details


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