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Unpaid wages

including wills and probate
Gaggsy
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Unpaid wages

#233097

Postby Gaggsy » July 1st, 2019, 10:51 am

Moderator Message:
Moved to Legal Issues as it may get more responses there, and edited title for clarity (chas49)


I'm looking for a bit of advice.

My wonderful employer failed to pay my monthly salary in June. It's usually in my bank account on the last working day of the month. He didn't give me any notice of this but has now called me to say it shouldn't have happened, won't happen again, and the money will be in my account today. No apology, but that's just the way he is. I'm still waiting for the money to arrive.

Obviously I'm unhappy with the situation and aim to find another job as soon as possible. However, I'm concerned I may end up leaving and not get paid what I'm entitled to. If I give a month's notice I'd probably have to fight to get the last payment out of him. Should I leave as soon as I'm paid and not give any notice? Would I be opening myself up to any action on his part if I did that?

Basically, how do I protect myself and make a clean getaway?

Thanks in anticipation
Gaggsy

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Re: Unpaid wages

#233125

Postby seagles » July 1st, 2019, 12:35 pm

Depends on your contract, what does it about notice etc. My contract asked a weeks notice, so I resigned on the Friday before a weeks holiday, which I was entitled to. No one has yet to complain and I got paid last Friday.

Gaggsy
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Re: Unpaid wages

#233137

Postby Gaggsy » July 1st, 2019, 1:04 pm

This is what my contract says regarding notice periods:

2. Term of Appointment
2.1 The Appointment shall commence on the Commencement Date.
2.2 The first six months of the Appointment shall be a probationary period and the
Appointment may be terminated during this period at any time on one week's notice
or payment in lieu of notice. During the probationary period the Employee's
performance and suitability for continued employment will be monitored.
2.3 If the Employee successfully completes the probationary period and this is
confirmed in writing, the Appointment shall continue, subject to the remaining terms
of this agreement, until:
(a) terminated by the Employee giving the Company, not less than one month's
prior notice in writing; or
(b) terminated by the Company giving the Employee,
(i) during the first four years of the Appointment, not less than one month’s
prior notice in writing;
(ii)...


I've been here 13 months, my successful completion of the probationary period was never confirmed in writing. I suppose I could argue that I'm still on one week's notice. However, I notice the contract is explicit as to what happens if there is written confirmation, but silent if there is not.

pochisoldi
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Re: Unpaid wages

#233149

Postby pochisoldi » July 1st, 2019, 1:49 pm

Re the late pay.
The last day of the month was yesterday - looks like cockup rather than conspiracy to me, unless you know something about the health of the business that we don't.

Re the notice.

Just give them the written notice.
If you have any annual leave left, then make it explicit that you will be taking those days off at the end of the notice period.

The wording I have used in the past was something like:

"I am giving you one month's notice of my intention to leave my job on Friday 2nd July 2019.
As I have five days annual leave to take, my last day in the office will be Friday 26th June 2019."

Not giving notice could come back to bite you - if you ever need a reference from them, they probably won't provide one or it might mention the "buggered off without giving any notice"

On the other hand, if business is poor, and they could survive without you, speak to the owner/manager and ask them if you can leave earlier.
You never know, they might actually agree to it.
Make sure any agreement is put in writing, and signed by you and your line manager.
The agreement effectively varies your contract of employment, and in itself is enforceable as a contract.

"I Gaggsy, and InsertNameOfCompanyHere agree the following

The company agrees to waive the notice period in my contract of employment.
My employment will terminate on <date>.
The company will allow me to take my remaining annual leave, so my last day in the office will be <date>
or
The company will pay N days untaken annual leave on the next payroll run due on <date>.
Any remaining unpaid wages will be paid on this date."

PochiSoldi

Gaggsy
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Re: Unpaid wages

#233180

Postby Gaggsy » July 1st, 2019, 3:21 pm

Thanks for the response Pochisoldi.
It's not a cockup, it's a cashflow issue. They don't have enough cash to pay staff, suppliers or subcontractors. Funds may materialise later today or tomorrow, but until then nothing.
I'm not worried about a lack of reference from them. My reputation in this industry is probably better than theirs. I'm more interested in the legal aspect of leaving without giving proper or sufficient notice.
I won't be talking to them about leaving. Their track record with paying sub-contractors is that if they withdraw their services due to lack of payment, they go to the back of the queue with regards to payments. I can imagine a similar scenario with staff, hence my thoughts I need to time my exit to coincide with payment so that I'm not too much out of pocket.
This is not a normal company! Never come across anything like it in all my working life!

chas49
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Re: Unpaid wages

#233201

Postby chas49 » July 1st, 2019, 4:24 pm

IMHO (and IANAL) - failure to pay your wages is a fundamental breach of the contract. If they fail to pay you within a reasonable period, you could (in my view) treat the contract as having been ended by them and leave without notice and sue them for the unpaid wages. They would presumably argue that you should have given notice - but I question whether that would stand up in court if they haven't paid you.

Of course, if they haven't got any money, suing won't help.

Better (non-legal) advice is to find a new job, tell the new employer at interview about the reasons for leaving (so they won't pay too much attention to a poor reference unless it's about performance other than leaving without notice).

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Re: Unpaid wages

#233216

Postby Slarti » July 1st, 2019, 5:45 pm

Gaggsy wrote:Thanks for the response Pochisoldi.
It's not a cockup, it's a cashflow issue. They don't have enough cash to pay staff, suppliers or subcontractors. Funds may materialise later today or tomorrow, but until then nothing.
I'm not worried about a lack of reference from them. My reputation in this industry is probably better than theirs. I'm more interested in the legal aspect of leaving without giving proper or sufficient notice.
I won't be talking to them about leaving. Their track record with paying sub-contractors is that if they withdraw their services due to lack of payment, they go to the back of the queue with regards to payments. I can imagine a similar scenario with staff, hence my thoughts I need to time my exit to coincide with payment so that I'm not too much out of pocket.
This is not a normal company! Never come across anything like it in all my working life!


I was once employed by a busted company and on the day that pay failed to arrive, I just quit and walked away.

I signed on on the following Monday and mentioned that employer had not paid wages, was given a form to fill in and 3 months or so later got money from the government to cover most of the missing wages. But that was 30+ years ago so I don't know if they still do that.

I started a new job in just over a week, which turned out to be a great change of career.

Slarti

AsleepInYorkshire
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Re: Unpaid wages

#233233

Postby AsleepInYorkshire » July 1st, 2019, 7:10 pm

Gaggsy wrote:I'm looking for a bit of advice.

My wonderful employer failed to pay my monthly salary in June. It's usually in my bank account on the last working day of the month. He didn't give me any notice of this but has now called me to say it shouldn't have happened, won't happen again, and the money will be in my account today. No apology, but that's just the way he is. I'm still waiting for the money to arrive.

Obviously I'm unhappy with the situation and aim to find another job as soon as possible. However, I'm concerned I may end up leaving and not get paid what I'm entitled to. If I give a month's notice I'd probably have to fight to get the last payment out of him. Should I leave as soon as I'm paid and not give any notice? Would I be opening myself up to any action on his part if I did that?

Basically, how do I protect myself and make a clean getaway?

Thanks in anticipation
Gaggsy


Your employer has "technically" breached their contract with you. But if it's not a recurrent event there's probably little you can do that will not drain you of time and resources in the process.

However, and more importantly (at least in my humble opinion) they have broken some sacred areas of trust. And that's left you with some doubt about whether you will get paid at the end of the month if you resign. The tone of your post seems to indicate you have grave doubts.

I think it may boil down to a judgement call on your part. Effectively you don't have to work your notice period. And for the most the consequences of that are "no reference" and no final months pay. If you are in a position where not working your notice could cause the company great loss they could in theory take legal actions against you to recover the losses. I think that's about the bare bones of it in layman's terms as I understand it.

It may sound a bit daft (perhaps even crazy) but why don't you turn your question around? If you asked your employer to reassure you that he has the money and will to pay you at the end of a months notice (and put it in an escrow account for example) then you could be reassured you would be paid. If you did so in writing and he said no then effectively you could pass judgment at that point and elect to agree that the contract cannot be enforced by either party. All a bit sort of crazy really?

The issue seems to revolve around his failure to pay on time and to have the common courtesy to let you know. Which would undermine my trust completely and understandable it probably has yours too.

It is your shout. In your shoes I would not want to work for a month and find I had to take action to get my pay at the end of it. Apart from the time, effort and expense it wouldn't happen in short timelines. You can opt to recover through an employment tribunal within three months less a day or County Court where you have six years. Either way it's going to take longer than a month. And at the end of all that you may find he doesn't have the money anyway.

AiY

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Re: Unpaid wages

#233238

Postby monabri » July 1st, 2019, 7:45 pm

Your are still there after 13 months - clearly your probationary period was satisfactory. Hence you are now on 1 months notice.

They are in breach of contract.

Do not mention the name of the company in any social media - they could always hold it against you.

chas49
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Re: Unpaid wages

#233248

Postby chas49 » July 1st, 2019, 8:24 pm

Moderator Message:
Moved to Legal Issues as it may get more responses there, and edited title for clarity (chas49)

AsleepInYorkshire
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Re: Unpaid

#233249

Postby AsleepInYorkshire » July 1st, 2019, 8:32 pm

Gaggsy wrote:This is what my contract says regarding notice periods:

2. Term of Appointment
2.1 The Appointment shall commence on the Commencement Date.
2.2 The first six months of the Appointment shall be a probationary period and the
Appointment may be terminated during this period at any time on one week's notice
or payment in lieu of notice. During the probationary period the Employee's
performance and suitability for continued employment will be monitored.
2.3 If the Employee successfully completes the probationary period and this is
confirmed in writing, the Appointment shall continue, subject to the remaining terms
of this agreement, until:
(a) terminated by the Employee giving the Company, not less than one month's
prior notice in writing; or
(b) terminated by the Company giving the Employee,
(i) during the first four years of the Appointment, not less than one month’s
prior notice in writing;
(ii)...


I've been here 13 months, my successful completion of the probationary period was never confirmed in writing. I suppose I could argue that I'm still on one week's notice. However, I notice the contract is explicit as to what happens if there is written confirmation, but silent if there is not.


Sorry I missed this.

In my opinion you're not on any notice at all.

The company did not write confirming you have completed your probationary period.

2.3 If the Employee successfully completes the probationary period and this is
confirmed in writing, the Appointment shall continue


No letter. Therefore, the appointment became "discontinued. And at that point both parties continued under a different basis. If they have not determined in writing what the period of notice is they cannot latter try to enforce terms through a court. I can't see that a judge would (unless there's statute or case law on the subject) be able to find that "in the eyes of a reasonable man" they could enforce any notice period at all.

Silence cannot be used to support a missing term. Indeed the contract looks as if it builds in its own termination at six months if the written notice isn't given. Additionally I wonder (rather cynically) if this works in favour of the employer as "they think" that they can argue two situations to their advantage.

1) They give you notice after 6 months. But only give you a week as they haven't given you a letter confirming successful probation.

2) You try to give them a weeks notice but they argue you have to give them one month as it "can be assumed" that as you are still there you have successfully completed your probation.

They cannot argue you are on a weeks notice as they have effectively terminated the original contract at six months by not giving you written notice of successful probation.

AiY

Gaggsy
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Re: Unpaid wages

#233347

Postby Gaggsy » July 2nd, 2019, 11:25 am

Thanks for your considered response AiY (and others). Much appreciated. We're in similar industries and roles so I'm sure you're all too aware of the snowball effect when people don't get paid. It's been going on for some time here but this is the first time it's affected the staff. People are understandably upset or angry and what little trust there was has now gone.

We eventually got paid at about 17:30 yesterday, but I think the damage is done and some key staff may decide to walk away now rather than risk the same scenario next month.

AsleepInYorkshire wrote:In my opinion you're not on any notice at all.The company did not write confirming you have completed your probationary period.

Yes, there's a lot of merit in what you say. However, I think it safe to say that I am 'Employed' and therefore there may be statutory rules that apply regarding notice periods. According to ACAS http://www.acas.org.uk/index.aspx?articleid=3968 it looks like it's one week. They use the word 'must' when saying "Employees who have at least one months service must give one week's notice", but when the Employer gives notice they say it's a legal minimum requirement, i.e. "The legal minimum notice required to dismiss is: one week if the employee has been employed between one month and two years"
My interpretation of this is that I'm required to give one week's notice.

dionaeamuscipula
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Re: Unpaid wages

#233358

Postby dionaeamuscipula » July 2nd, 2019, 12:01 pm

Gaggsy wrote:Thanks for your considered response AiY (and others). Much appreciated. We're in similar industries and roles so I'm sure you're all too aware of the snowball effect when people don't get paid. It's been going on for some time here but this is the first time it's affected the staff. People are understandably upset or angry and what little trust there was has now gone.

We eventually got paid at about 17:30 yesterday, but I think the damage is done and some key staff may decide to walk away now rather than risk the same scenario next month.

AsleepInYorkshire wrote:In my opinion you're not on any notice at all.The company did not write confirming you have completed your probationary period.

Yes, there's a lot of merit in what you say. However, I think it safe to say that I am 'Employed' and therefore there may be statutory rules that apply regarding notice periods. According to ACAS http://www.acas.org.uk/index.aspx?articleid=3968 it looks like it's one week. They use the word 'must' when saying "Employees who have at least one months service must give one week's notice", but when the Employer gives notice they say it's a legal minimum requirement, i.e. "The legal minimum notice required to dismiss is: one week if the employee has been employed between one month and two years"
My interpretation of this is that I'm required to give one week's notice.


The breach in your contract has therefore been resolved. There is a view (and IANAL) that only if there have been a number of such issues can the employee consider that the breach is so fundamental that the contract can be repudiated. I don't agree with AiY opinion on the position regarding the probationary period, as both sides have been acting as if your employment has continued and it would be reasonable therefore unless there have been suggestions otherwise, that there is prima facie evidence that the probationary period has ended.

Having said that, what are the likely consequences of you breaching your contact by leaving with little or no notice?

If you leave and are not paid then you can take the employer to a tribunal or sue (of course your employer may turn out to be a straw man). You would be in breach of contract but it would be unusual for an employer to sue for breach, unless you have skills that are especially difficult to replace; you don't care about any reputational damage and you don't need a reference. Even though I don't agree with it not having ended, you could throw in the probationary period to muddy the waters. So it is very likely that the consequences of you breaching will be nil, but that is a risk you should consider.

The other thing to mention is it seems possible the business is trading while insolvent. That is a criminal offence.

DM

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Re: Unpaid

#233360

Postby Watis » July 2nd, 2019, 12:04 pm

AsleepInYorkshire wrote:
Gaggsy wrote:This is what my contract says regarding notice periods:

2. Term of Appointment
2.1 The Appointment shall commence on the Commencement Date.
2.2 The first six months of the Appointment shall be a probationary period and the
Appointment may be terminated during this period at any time on one week's notice
or payment in lieu of notice. During the probationary period the Employee's
performance and suitability for continued employment will be monitored.
2.3 If the Employee successfully completes the probationary period and this is
confirmed in writing, the Appointment shall continue, subject to the remaining terms
of this agreement, until:
(a) terminated by the Employee giving the Company, not less than one month's
prior notice in writing; or
(b) terminated by the Company giving the Employee,
(i) during the first four years of the Appointment, not less than one month’s
prior notice in writing;
(ii)...


I've been here 13 months, my successful completion of the probationary period was never confirmed in writing. I suppose I could argue that I'm still on one week's notice. However, I notice the contract is explicit as to what happens if there is written confirmation, but silent if there is not.


Sorry I missed this.

In my opinion you're not on any notice at all.

The company did not write confirming you have completed your probationary period.

2.3 If the Employee successfully completes the probationary period and this is
confirmed in writing, the Appointment shall continue


No letter. Therefore, the appointment became "discontinued. And at that point both parties continued under a different basis. If they have not determined in writing what the period of notice is they cannot latter try to enforce terms through a court. I can't see that a judge would (unless there's statute or case law on the subject) be able to find that "in the eyes of a reasonable man" they could enforce any notice period at all.

Silence cannot be used to support a missing term. Indeed the contract looks as if it builds in its own termination at six months if the written notice isn't given. Additionally I wonder (rather cynically) if this works in favour of the employer as "they think" that they can argue two situations to their advantage.

1) They give you notice after 6 months. But only give you a week as they haven't given you a letter confirming successful probation.

2) You try to give them a weeks notice but they argue you have to give them one month as it "can be assumed" that as you are still there you have successfully completed your probation.

They cannot argue you are on a weeks notice as they have effectively terminated the original contract at six months by not giving you written notice of successful probation.

AiY


Firstly, IANAL.

Although I've not been in this position, this thread makes an interesting read.

AiY suggests that the completion of the probationary period not being confirmed in writing means that the appointment is discontinued.

But couldn't it be argued - by either party - that, by Gaggsy continuing to turn up for work and the employer continuing to pay him, the probationary period was completed successfully, although not confirmed in writing, and that, as both parties have behaved as though the employment continued, a de facto contract of employment exists?

Watis

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Re: Unpaid wages

#233404

Postby gryffron » July 2nd, 2019, 2:07 pm

I think you are on de-facto contract too. The fact the probationary period was not confirmed in writing is not critical. The contract you quoted has no clause for extension of the probationary period (some do), and thus because you are still there and they have been paying you, both parties must have accepted you have gone on to standard terms.

Yes, the govt will still provide pay if an employer is insolvent and unable. https://www.gov.uk/your-rights-if-your- ... -insolvent Both for pay and redundancy pay. Although claiming such can be a long and tedious process.

Incidentally, your employer IS technically insolvent. As soon as they are unable to pay any liability on time this is true. You could petition for them to be wound up. Although it would be pretty self-defeating, as then you wouldn't have a job.

The employer is also liable for incidental costs which any employees incur due to late payment. Overdraft or bounced payment fees for example. They should have offered. They will certainly lose if taken to court by any employees for such costs. Make sure your fellow employees know this, even if it doesn't affect you.

Leaving without notice: In theory, an employer could sue an employee for liabilities incurred by them in covering the work. In practice, I've never heard of this happening. And as they are already in technical breach of contract, in your case they'd lose anyway.

I've walked out of a company on short notice too. I was in-between projects and not very busy when offered another job. First I asked if I could leave that Friday, but no manager was willing to commit to the decision "I can't authorise that" they all said, so I turned it round and said "I am finishing on Friday. Tell me if that's a problem." They didn't, so I left.

It is also worth asking whether they want you to honour your notice period. If they're truly skint, they might be quite happy for you to leave at very short notice to reduce the payroll. You can always terminate any contract by mutual agreement.

Gryff


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