My Niece not being paid for last 6 weeks work

[mark88man]

Hello

I wonder if I might appeal to the more no-nonsense types amongst this board to help me advise my niece. She is a lovely girl, hard working and robust (having spent 6 months working in mainland China with no problems, before having to scarper ahead of the virus lockdown).

Following a short gap following her return she the started a difficult 6 months work (not employment a gig economy job - so a contract for services not of employment). Her boss was relentless asking for support and effort without respect for the limited hours in the contract and always making it awkward for her to get paid. Finally she resigned / submitted her final invoices - just over £2K, which her employer has refused to pay, on the grounds that there was damage (unspecified), and services not satisfactorily completed (not previously notified). The boss is insisting on all negotiations being verbal, and she is insisting on email/writing, because he is hectoring and bullying.

My feeling is that the boss has gone beyond being hardnosed, into looking to get out of his obligations. The exchanges to date are merely prolonging the agony in that it is clear to me he has no intention of paying her. So I understand the above is not enough to build a case on but broadly what should her next steps be - mediation, or small claims (MCOL?). I work for a big company and my partner for a local school so this is well outside my comfort zone. Grateful for any help really ! What would you do

Thanks
Mark

[mc2fool]

I'd start by calling Citizens Advice. https://www.citizensadvice.org.uk/about-us/contact-us/contact-us/contact-us/

[paulnumbers]

Hello

I wonder if I might appeal to the more no-nonsense types amongst this board to help me advise my niece. She is a lovely girl, hard working and robust (having spent 6 months working in mainland China with no problems, before having to scarper ahead of the virus lockdown).

Following a short gap following her return she the started a difficult 6 months work (not employment a gig economy job - so a contract for services not of employment). Her boss was relentless asking for support and effort without respect for the limited hours in the contract and always making it awkward for her to get paid. Finally she resigned / submitted her final invoices - just over £2K, which her employer has refused to pay, on the grounds that there was damage (unspecified), and services not satisfactorily completed (not previously notified). The boss is insisting on all negotiations being verbal, and she is insisting on email/writing, because he is hectoring and bullying.

My feeling is that the boss has gone beyond being hardnosed, into looking to get out of his obligations. The exchanges to date are merely prolonging the agony in that it is clear to me he has no intention of paying her. So I understand the above is not enough to build a case on but broadly what should her next steps be - mediation, or small claims (MCOL?). I work for a big company and my partner for a local school so this is well outside my comfort zone. Grateful for any help really ! What would you do

Thanks
Mark

Send a notice before action giving adequate time to pay, followed up by a money claim online.

[AF62]

Hello

I wonder if I might appeal to the more no-nonsense types amongst this board to help me advise my niece. She is a lovely girl, hard working and robust (having spent 6 months working in mainland China with no problems, before having to scarper ahead of the virus lockdown).

Following a short gap following her return she the started a difficult 6 months work (not employment a gig economy job - so a contract for services not of employment). Her boss was relentless asking for support and effort without respect for the limited hours in the contract and always making it awkward for her to get paid. Finally she resigned / submitted her final invoices - just over £2K, which her employer has refused to pay, on the grounds that there was damage (unspecified), and services not satisfactorily completed (not previously notified). The boss is insisting on all negotiations being verbal, and she is insisting on email/writing, because he is hectoring and bullying.

My feeling is that the boss has gone beyond being hardnosed, into looking to get out of his obligations. The exchanges to date are merely prolonging the agony in that it is clear to me he has no intention of paying her. So I understand the above is not enough to build a case on but broadly what should her next steps be - mediation, or small claims (MCOL?). I work for a big company and my partner for a local school so this is well outside my comfort zone. Grateful for any help really ! What would you do

Thanks
Mark

Send a notice before action giving adequate time to pay, followed up by a money claim online.

And then once she has obtained judgment if they don’t pay, which they probably won’t, she could engage a High Court Enforcement Officer (aka The Sheriffs) to collect as they have significant powers.

[mark88man]

Thank you all.

I will look up the process and tell her to DHOR. I imagine making the case will be based on a statement of fact, which will then be assessed. I will point her in that direction and cheer on from the sidelines, boosted by confidence that wiser heads than mine point in this direction. CAB is a good idea too, and I will check with her parents whether they have legal cover on their policy or through their work

[Mike4]

My feeling is that the boss has gone beyond being hardnosed, into looking to get out of his obligations. The exchanges to date are merely prolonging the agony in that it is clear to me he has no intention of paying her.
Mark

I think it might be helpful to expand on the nature of the legal entity that employed her. This bit gives the impression "the boss" personally is the employer. Is that the case or is it actually a Ltd Co? If a Ltd Co is it a small company where the directors are on personal terms with "the boss" or is it a multi-national? Or something in between?

The thing is, if the boss employed her and is paying out of his own pocket, a totally different approach might be needed from say, a medium or large sized Ltd Co where the directors are unaware of the dispute. Also, a tin pot Ltd Co on its financial knees will need handling differently from a decent sized company with lots of employees and a healthy P&L account. For example if the latter and judgement is obtained, going straight for a winding up order really gets the attention of the directors, so I understand, but if the company is about to fold anyway, then no-one there will care. And if the employer is an individual, personal liability comes into play and his assets (if any) need investigating before ploughing any significant effort into pursuing the debt.

[paulnumbers]

Thank you all.

I will look up the process and tell her to DHOR. I imagine making the case will be based on a statement of fact, which will then be assessed. I will point her in that direction and cheer on from the sidelines, boosted by confidence that wiser heads than mine point in this direction. CAB is a good idea too, and I will check with her parents whether they have legal cover on their policy or through their work

I imagine the case would not make it to court. Does the company really want to waste time mounting a defense and sending a solicitor to court? (if they're in the wrong)

That said, if they do have to go, it's a good experience for a young person to head off to court to enforce their contracts in my opinion. Nothing to be feared.

[Mike4]

Thank you all.

I will look up the process and tell her to DHOR. I imagine making the case will be based on a statement of fact, which will then be assessed. I will point her in that direction and cheer on from the sidelines, boosted by confidence that wiser heads than mine point in this direction. CAB is a good idea too, and I will check with her parents whether they have legal cover on their policy or through their work

I imagine the case would not make it to court. Does the company really want to waste time mounting a defense and sending a solicitor to court?

You can never tell. The 'flood gates' principle might be at stake as it was when an estate agent sued me for £300 I deducted from their bill, so poor was the service they delivered. I expected them to drop it just as you suggest, but no, the estate agency boss and his solicitor spent a day in court with me teasing it all out. They won in the end but I'm sure that cost them a whole lot more than the £300. EAs generally have a policy of always suing whatever the cost I since discovered, as they don't want the principle of money being docked for poor performance ever getting established. I can imagine something along these lines happening in the OP's case.

[mark88man]

Thank you again, had a chat with my niece to confirm, it is a small Ltd family company with Husband and wife as director's and a couple of employees and a dozen further or so contracted (ie not employed but contracted). It seems that there are about 4 companies owned by them and set up in a similar way for different businesses

[fisher]

This thread on the contractoruk has some useful links for non-payment advice (see the last post in the thread).

https://www.contractoruk.com/forums/acc ... dvice.html

The forum itself is very active with contractors. In your position I would start a thread on there detailing your problem and asking for advice. There will be some posters who have been through the process.

[Grumpsimus]

I used to work at the CAB and have dealt with very similar cases and was always amazed at the the very inventive excuses the worst type of employers came up with to avoid paying anything that they owe to employees. I have seen the case of an employer claiming a past 'mistake' to avoid payment of wages owed - they rapidily paid up when seriously challenged by a referral to the Employment Tribunal. In another an employer refused to pay holiday to a former employee, on the the grounds he didn't have any money. The former employee then saw him driving round in a very expensive brand new car. The employee was understandably incensed and with the help of the CAB took him to the Employment Tribunal and recovered her holiday in full.

I think your Niece was very wise to leave this employer who appears to be dishonest and devious. It has already been suggested that she contacts the CAB and this is a good place to start with this type of problem.

It appears that most people seem to to have swallowed the employers line that she was a gig economy worker with only a contract for services. Useful for the employer. However, from the brief details given I think she would almost certainly be classified as a 'Worker'. Therefore, she would be able to bring a claim at an Employment Tribunal. As part of this process you have to try concilation run by Acas, this may well produce payment, as Acas will tell the employer he will probably lose and have to pay costs. The other advantages of the Employment Tribunal route is no costs for the employee and the Employment Tribunal will enforce the judgement.

[mark88man]

I used to work at the CAB and have dealt with very similar cases and was always amazed at the the very inventive excuses the worst type of employers came up with to avoid paying anything that they owe to employees. I have seen the case of an employer claiming a past 'mistake' to avoid payment of wages owed - they rapidily paid up when seriously challenged by a referral to the Employment Tribunal. In another an employer refused to pay holiday to a former employee, on the the grounds he didn't have any money. The former employee then saw him driving round in a very expensive brand new car. The employee was understandably incensed and with the help of the CAB took him to the Employment Tribunal and recovered her holiday in full.

I think your Niece was very wise to leave this employer who appears to be dishonest and devious. It has already been suggested that she contacts the CAB and this is a good place to start with this type of problem.

It appears that most people seem to to have swallowed the employers line that she was a gig economy worker with only a contract for services. Useful for the employer. However, from the brief details given I think she would almost certainly be classified as a 'Worker'. Therefore, she would be able to bring a claim at an Employment Tribunal. As part of this process you have to try concilation run by Acas, this may well produce payment, as Acas will tell the employer he will probably lose and have to pay costs. The other advantages of the Employment Tribunal route is no costs for the employee and the Employment Tribunal will enforce the judgement.

Thank you - I think this is both very true and very helpful. She talks (and confirms the office talk) was of employment - so although anecdotal I think it will perhaps ring truer and marginally less hard core than going straight to court. It's like those law shows on TV where you have to pick you optimum strategy. I've passed on the link and will wait for Monday to see what the CAB say. I hate posting and running, so I will let you know how it proceeds over the next few days/weeks, hopefully not months.

[mark88man]

This thread on the contractoruk has some useful links for non-payment advice (see the last post in the thread).

https://www.contractoruk.com/forums/acc ... dvice.html

The forum itself is very active with contractors. In your position I would start a thread on there detailing your problem and asking for advice. There will be some posters who have been through the process.

Thank you for this as well, both helpful to my niece and of professional interest to me. I think my niece has decided to consult the CAB before she does anything else. I think as grumpsimus posted although a contractor, she was realistically (and possibly even legally) a worker (and contractor for the employers convenience and to get a job) rather than a contractor as a preferred status. Not to say the advice wouldn't be helpful, but possibly such advice might be coming from a different tack.

[fisher]

I think my niece has decided to consult the CAB before she does anything else. I think as grumpsimus posted although a contractor, she was realistically (and possibly even legally) a worker (and contractor for the employers convenience and to get a job) rather than a contractor as a preferred status. Not to say the advice wouldn't be helpful, but possibly such advice might be coming from a different tack.

This sounds very sensible. Contact CAB and see if you can attack it from the being a worker angle. Make sure she keeps any letters and emails, particularly any that might confirm she actually worked the days that the company is refusing to pay her for. My only concern would be the amount of time you may spend trying to ascertain if she has employee rights. Keep all contact with the company in writing.

[mark88man]

Thanks @fisher - yes - I think you are right, might be worth a brief detour into ACAS then if that doesn't show any sign of traction abandon ship and head to the OK I am a contractor so flock you, pay me (I must say I did enjoy the video - even if the immediate impact was replaced by some more commons sense and solid content as time elapsed)

[Avantegarde]

Broadly speaking, making unauthorised deductions from pay, on spurious grounds such as "underperformance" or whatever, is unlawful. Ask a CAB for advice, or even pay a specialist employment lawyer for an hour's good advice. Then, as suggested, consider suing for the money in the online small claims court or via an employment tribunal claim. The former is simpler than the latter but I'm not sure which avenue gives you the greater prospect of success.

[didds]

just a thought - does said neice have any household insuerance that ioncludes some legal cover?

[chris]

Employment tribunals have been mentioned but she won't have access to an employment tribunal under normal circumstances because she has not been 'employed' for 2 years. The exception to this is if she has been discriminated against because of a protected characteristic, then she could. If all females working in her area were on her sort of contract and males, not; or if all the people working on those sorts of contract were female, then she would probably have a sex discrimination case.

Alternatively, after what has been said, she could write / email them and say that she has had advice that since she was required to work specific hours, she was told what to do and there was no right of substitution (ie she would provide a substitute if she could not work), then she was an employee and if they didn't pay up, she would not only take legal action on the invoice but also notify HMRC that National Insurance should have been paid on her behalf since she was an employee and not self employed, and that she was also entitled to holiday pay which would form part of her legal claim.

They may then pay up to keep her quiet.

[didds]

They may then pay up to keep her quiet.

then once the money is banked (some caeats apply) inform HMRC anyway.

[Grumpsimus]

Employment tribunals have been mentioned but she won't have access to an employment tribunal under normal circumstances because she has not been 'employed' for 2 years. .........................

I think that you are getting confused, the two year period of employment requirement refers to claims for for unfair dismissal. In this case we are talking about an illegal deduction from wages ( effectively all the wages for a six week period). There is no minimum period of service required to bring a claim at an Employment Tribunal for this, see ERA 1996. Therefore, The Employment Tribunal is the appropriate forum for this type of claim.

There still appears to be confusion between what it might say in a written contract and the actual legal position. The Courts including Employment Tribunals look at what is really happening in reality, rather than the wording of a contract. If you are working regular hours for a single employer, under their control and direction and being paid, you are likely to be an employee. This could apply even if you had no written contract.

You might have heard of the Uber case, the issue is are the drivers self employed or workers. The Supreme Court is due to give a judgement on this on Friday of this week