Bare Knuckle Pickups Forum
At The Back => The Dressing Room => Topic started by: horsehead on August 04, 2009, 05:04:26 PM
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My employer hasn't paid me for last month & told me & other members of staff that we aren't in administration but he can't afford to pay us yet, he gave us £300 in cash & he told us that he'd get the remaining pay to us by the end of august at the latest. I've tried searching around on the internet & can't find much to help, myself & a colleague are going to the CAB tomorrow, but does anyone have any ideas of what we are entitled to. Do we have to work for him? Is he honour bound to pay us our wages ASAP? We haven't signed anything to say that we agree to the pay being drip-feed to us so I don't know where we stand & need help from you geniuses
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I am not an employment lawyer - but I can point you to section 13 and 23-24 of the Employment Rights Act 1996
http://www.opsi.gov.uk/acts/acts1996/ukpga_19960018_en_3#pt2-pb1-l1g13
In particular read Section 13(1) and 13(3) and Section 23(1), 23(2) and Section 24(1)
In essence it looks like you can go to the Employment Tribunal to get your money.
If it continues despite your complaints, it may also constitute an action in constructive dismissal.
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Ummm.... I have no proper legal knowledge about this at all, but I have been through some hairy moments involving redundancy and companies going down over the last 20 years or so.
My impression has always been that it is actually against the law to trade if you can't pay the salaries... as in a "shut the company down, employer prosecuted" type of "against the law".
I've been in companies where we shed people (including me) so we could keep trading legally, and also another where we all negotiated taking a drop in salary (instead of some of us losing our jobs) so that the company could continue...
I've never been in a position where the expected pay packet didn't show up.
If he ain't got the money to pay, he ain't got a business... if he gets wound-up, I think employees join the list of other creditors - not sure where they stand in the pecking order though...
Sorry to hear this Horsehead :(
EDIT: Just realised I hadn't said what I meant to say, and why I posted :roll: - based on my limited understanding, I'd want to check out what the position is with regard to him trading without being able to pay the salaries before I put any wheels in motion... my worry would be that all your jobs might be in jeopardy, and that if the company is not allowed to continue trading, then getting the back pay might be hard work if the money doesn't exist when it happens?
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I am sorry to learn of your situation. It may not be much consolation but a friend was in a similar situation and was told he'd not get outstanding pay but did get every penny in the end-took about 6 to 8 weeks. I think it would be worth grouping together with your former colleagues to share knowledge and, if it comes to it, legal expenses.
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i have no idea, but i'm sorry to hear that. :(
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I'm really sorry to hear that you're going through this.
I've been at a couple of companies that went down with all hands on deck. The gist I got from dealing with administrators is that if the company goes down you won't see a penny of the wages you're owed. Last time this happened to me I was owed two months salary and, seven years later, I haven't seen any money at all. The reason is that the bank loan repayments and tax that the employer always appears to owe is paid first out of any liquidated assets, the staff come a long way down the list of creditors.
On the plus side I did once work at a studio where the situation you are now in came to pass and the owners did pull the fat out of the fire. I guess it depends on how much you trust your boss.
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I'm a HR Adviser for my sins
I think the best thing you can do is to phone ACAS first thing in the morning:
http://www.acas.org.uk/index.aspx?articleid=2042
08457 47 47 47
they should be able to tell you where you stand
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Got to agree with going to ACAS. May also be worth getting an appointment with Citizens Advice and getting some solicited information.
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Went to the CAB this morning, didn't tell me anything I didn't already know. Called ACAS & they gave me some info, but it's getting dodgier & dodgier! We're still not in administration, but I can't get in writing anything to confirm when I'm being paid. According to the consultant that they brought in they haven't broken anything because verbally I've agreed with them that they could pay weekly to the end of august they haven't done anything, the fact that they've not paid me at all means nothing apparently! I've also received a letter saying that I'm to attend an investigatory meeting tomorrow, but I can't get in writing exactly what it's about.
Fun, fun, fun!
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A similar thing happened to my brother, payday was missed, excuses were give, "the companies not in trouble", "your jobs safe". A few weeks go by, the company goes bust and the administrators called in. He did eventually get the missing payment but it took a while :?
Hope thing work out for you.
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Limited knowledge here, but as I understand it they cannot withhold any pay unless you have agreed it, they can't even make a deduction from your wages as a re-imbursement (for instance I use the post at work for personal stuff, but they have to get my permission to make the deduction from my wages).
However, if you've verbally agreed then although a bit dicey they are ok, however, it's a verbal contract and if they have reneged on that agreement then they are in breach.
The awkward bit is that if you push the issue then you may force them into administration, and run the risk of not getting any money from the administrators anyway.
I'd be deeply suspicious of the 'we aren't going under' statement if they can't afford to pay the wage bill, ok, maybe someone else is holding out on them and it's drained the funds, but still, not a good sign. Start looking for a new job :(
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If the management of the firm insists that everything is going to be OK, just a few cashflow issues, you can ask for the owner of the business to give a personal written guarantee of salaries.
Also, I do not know how it works in England, but if you have a company pension plan, make sure that those contributions are being and have been made on time and in full.
Employers in trouble (at least in the U.S.) are notorious for raiding money earmarked for plan contributions when the company faces cashflow problems.
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Did you actually verbally agree with them that they could pay weekly to the end of august? Because your first post suggest that you never agreed, it was presented to you on a plate. If you said yes, you have to wait until the end of August.
If you are still not paid or you made no such agreement, your recourse is to commence an action in the ET under s.13 Employment Rights Act 1996 as set out above.
If the company/employer does go down with no money, 8 weeks wages is a priority debt that has to be paid by the Administrator first before anyone else gets paid (even the tax man). Further, if there is no money for 8 weeks pay, holiday pay, redundancy, the National Insurance fund pays it after you jump through various hoops - see Sections 182-190 of the Employment Rights Act 1996
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Thanks for that info Elliot, I hope I never need it, but it's good to know!
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Thanks for the heads up Elliot, but it's all kicked off now, I was called to an investigatory meeting that turned into a disciplinary & at the end I was suspended on full pay ( if I get it!). I asked for an adjournment and was verbally abused as well as threatened. I'm now considering legal action.
Thanks for all your help guys
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Flip! :o
I don't know what to say...
Well... thinking of you, hope it works out, and not more stressfully than it ought to...
That's a complete bummer...
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If they do dismiss you, it already looks like a potential unfair dismissal as you have asserted a statutory right and to dismiss on this basis constitutes a potentially unfair dismissal.
Have a read of this case summary I found on the net - not entirely on point, but it takes you in the right direction when talking to a employer lawyer:
'In the recent case of Elizabeth Claire Care Management
Ltd v Francis, the Employment Appeal Tribunal (EAT)
held that an employee was automatically unfairly
dismissed after complaining that she had not been paid
her wages on time.
The Employment Appeal Tribunal found that her employers had made an
unlawful deduction from the employee’s wages pursuant
to s13 (1) of the Employment Rights Act 1996 by paying
her 4 days late. The employee had made several
telephone calls to her employers seeking an explanation
for the late payment and the EAT found that in doing so,
she had asserted a statutory right i.e. the right not to
suffer unlawful deductions. The EAT held that despite
the employer’s arguments to the contrary, the real
reason for the employee’s dismissal was her assertion
of a statutory right, resulting in an automatically unfair
dismissal.'
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the disciplinary that I had was quoted as gross misconduct due to an email that had come from my old boss to another guy in the company who'd sent it to someone else saying that I'd given them information after being instructed not to speak to that person. Personally I see it that he's grasping at straws as he's suspended the other colleague from my old office when she asked why he told her that it was because it was an investigation so she might be involved...he had no evidence at all! Basically he's shut down our office & doesn't want to pay us off & is trying to find ways around it...I think!
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jeez, sorry to hear that. Good luck...
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Sounds bad :(
It always gets me why 'management' act like this. There's a procedure for redundancy, just follow it. Trying to dismiss someone on a bogus accusation is really poor form and reflects a lack of ethics in the corporate mentality. There's a serious lack of compassion in our society :?
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Get advice - its pretty hard to sack someone right now as correct procedure is a mandatory process so that if the employer c--ks up, its automatically unfair dismissal. Do you have a union or trade association who can assist you? Even if you are not a member at the moment they will usually afford you the assistance if you join up right now.
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These guys are B*stards. I hope you can get back at them.
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shock horror the company is going to be liquidated, but the notice that was posted in the London Gazette (I believe it has to go in there for the creditors) is dated 29th July! This is 2 days before my original meeting & over a week before my suspension meeting (the illegal one).
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ugh, bunch of crooks. :( I hope you get it sorted, good luck
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Are you still employed or have you been dismissed yet? Because your right to redundancy and notice wages (paid by the government through National Insurance if the company has no money) continues if the company goes into liquidation even if you are suspended but not yet dismissed.
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I haven't been dismissed, I am on suspension until tomorrow. I spoke to the company that is (suppose) to be over looking the whole thing & they are going to send the RP1 form over to me to fill in. I'm still kinda annoyed that they can pull this, but haven't got a clue to what to do about it
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I had a thought, have you got any legal expenses Insurance? You may have without even realising it.Some insurers tack it onto household policies and it is easy to forget that you have it. If so then get on to them and see if they can fund a Solicitor.
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I am not a solicitor or qualified to give advice on English law, but if the company is to be liquidated, I would hie myself to a solicitor to the equivalent of Legal Aid or whereever to find out what my rights are.
This goes double in the liquidation of a going concern, because by definition, in a liquidation there are more claims than there is money to go around.
So you want to know what your rights are to any share of what money is left.
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Unfortunately there is no legal aid for employment matters, so that's a no go and as stated wages are priority debts with the minimum payout guaranteed by the state.
The company is going to down so there is not much you can do - its a case of redundancy i'm afraid. Best thing, if they were trying to get rid of you by a trumped up gross misconduct allegation - saves you the hassle of an employment tribunal claim.
You should get the RP1 (which stands for Redundancy Pay Form 1 btw) in asap, and try to delay any conclusion of the disciplinary matter so you can get your redundancy award - for a company in liquidation, that's the best you are likely to get as there will be no money to pay any further award made by the Employment Tribunal (and these are not priority debts but a normal unsecured debt).
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Unfortunately there is no legal aid for employment matters, so that's a no go and as stated redundancy, 8 weeks wages and holiday/notice pay are priority debts with the minimum payout guaranteed by the state through NI.
The company is going to down so there is not much you can do - its a case of redundancy i'm afraid. Best thing, if they were trying to get rid of you by a trumped up gross misconduct allegation - saves you the hassle of an employment tribunal claim.
You should get the RP1 (which stands for Redundancy Pay Form 1 btw) in asap, and try to delay any conclusion of the disciplinary matter so you can get your redundancy award - for a company in liquidation, that's the best you are likely to get as there will be no money to pay any further award made by the Employment Tribunal (and these are not priority debts but a normal unsecured debt).