My Niece not being paid for last 6 weeks work

[mark88man]

So had a chat with my niece yesterday, she is very grateful for your help and education. I am shining in avuncular glory (which is nice).

We have decided to go down the route of "worker" and have pulled the salient facts into a brief letter which will be updated with finer details by her today and posted (recorded) on Monday. We are a little anxious as to the resulting behaviour of the boss - but secure in the reading we have done, and helped by the UBER result which should cause pause for thought.

We ended up with most of the devices mentioned so far - namely appeal for holiday pay at pro-rata for 20 days a year (around £300) - reference to ACAS and HMRC. Plus reference to professional advice, and its without prejudice so if we go down that route and it peters out, we will just revert to small claims/MCOL and try again that way.

Thank you all

[Mike88]

So had a chat with my niece yesterday, she is very grateful for your help and education. I am shining in avuncular glory (which is nice).

We have decided to go down the route of "worker" and have pulled the salient facts into a brief letter which will be updated with finer details by her today and posted (recorded) on Monday. We are a little anxious as to the resulting behaviour of the boss - but secure in the reading we have done, and helped by the UBER result which should cause pause for thought.

We ended up with most of the devices mentioned so far - namely appeal for holiday pay at pro-rata for 20 days a year (around £300) - reference to ACAS and HMRC. Plus reference to professional advice, and its without prejudice so if we go down that route and it peters out, we will just revert to small claims/MCOL and try again that way.

Thank you all

Keep us updated as this is an intriguing case.

[Mike4]

We have decided to go down the route of "worker" and have pulled the salient facts into a brief letter which will be updated with finer details by her today and posted (recorded) on Monday.

Thank you for the update and apologies for swerving off at a tangent. A couple of points.

1) As I understand it there is no longer any such thing as "Recorded Delivery" nowadays. Instead we have "Signed For".
2) In my limited experience of sending "Signed For" letters hoping to get proof of delivery, the receiving company (especially if either large or dodgy, or both) often turns out to have a policy of refusing to sign for or accept such mail. Understandable I guess as such mail usually only contains grief for them!

Better just to send First Class as from a legal standpoint and AIUI, a court accepts proof of posting as proof of delivery, rather than give the company a chance to create more delay by refusing the letter.

Maybe others here will know more about this and can advise better on what type of mail service by which to send important letters. I think it needs careful consideration.

There is also a Royal Mail service called "Special Delivery", the point of which I've never worked out as no signature is asked for. And whether a signature would actually be demanded nowadays with "Signed For" given COVID precautions, I rather doubt.

[mark88man]

oops recorded delivery - showing my age. I meant signed for, but I will consider what you say. I'm tempted to post it, and also for it to sent with a covering note as an email to be sure to be sure

Thank you

[fisher]

I think Signed For delivery is signed for by the postman as he delivers it in the current climate. This should be suitable for the OP's purpose.

Special Delivery is tracked all the way through its journey and is a completely distinct service where the packages are not mixed with regular deliveries. It is promoted for items of higher intrinsic value.

[staffordian]

We have decided to go down the route of "worker" and have pulled the salient facts into a brief letter which will be updated with finer details by her today and posted (recorded) on Monday.

Thank you for the update and apologies for swerving off at a tangent. A couple of points.

1) As I understand it there is no longer any such thing as "Recorded Delivery" nowadays. Instead we have "Signed For".
2) In my limited experience of sending "Signed For" letters hoping to get proof of delivery, the receiving company (especially if either large or dodgy, or both) often turns out to have a policy of refusing to sign for or accept such mail. Understandable I guess as such mail usually only contains grief for them!

Better just to send First Class as from a legal standpoint and AIUI, a court accepts proof of posting as proof of delivery, rather than give the company a chance to create more delay by refusing the letter.

Maybe others here will know more about this and can advise better on what type of mail service by which to send important letters. I think it needs careful consideration.

There is also a Royal Mail service called "Special Delivery", the point of which I've never worked out as no signature is asked for. And whether a signature would actually be demanded nowadays with "Signed For" given COVID precautions, I rather doubt.

I agree, and *think* Clitheroekid has said similar in the past.

I think the key thing is to hand it over at a Post Office and ask for a Certificate of Posting.

A court will normally assume that an item which has been posted wiĺl be delivered a working day or so later.

Whilst Covid rules might alter previous assumptions regarding signed for items, I suspect a Signed For item for which Royal Mail does not have a recipient's signature could prove troublesome and at the very least add an unnecessary degree of confusion.

[mark88man]

Thank you - that is the advice I have given. Take it to the post office, get proof of posting, then 1 day later email a scan of the proof of posting. We have given 10 working days for response so we should know by early in March, either his response or whether we get to send in an ET1.

[mark88man]

So Round 1 is over. The letter sent claiming payment and holiday pay, and a response received denying that she was an employee and not entitled to pay or an employee tribunal. We did not claim she was an employee, rather a worker

So question do we go straight to an ET1 or try for an early resolution through ACAS.

He also repeated claims of substantial flaws with the work despite not having mentioned them before. And again referenced his need to have terminated her (sounding a bit like a dalek)

My Niece is still full of fighting spirit and is not in urgent need of the money as she is locked down with family. She also had a long discussion with the CAB who agreed with this thread, namely that it was close but they would err on calling her an employee

[dspp]

So Round 1 is over. The letter sent claiming payment and holiday pay, and a response received denying that she was an employee and not entitled to pay or an employee tribunal. We did not claim she was an employee, rather a worker

So question do we go straight to an ET1 or try for an early resolution through ACAS.

He also repeated claims of substantial flaws with the work despite not having mentioned them before. And again referenced his need to have terminated her (sounding a bit like a dalek)

My Niece is still full of fighting spirit and is not in urgent need of the money as she is locked down with family. She also had a long discussion with the CAB who agreed with this thread, namely that it was close but they would err on calling her an employee

I would go whichever path the local CAB feel most supportive of, as you want their assistance. And of course your ultimate fallback is as a contractor if you exhaust worker/employee, "payment of invoice overdue".

good luck, dspp

[Grumpsimus]

So Round 1 is over. The letter sent claiming payment and holiday pay, and a response received denying that she was an employee and not entitled to pay or an employee tribunal. We did not claim she was an employee, rather a worker

So question do we go straight to an ET1 or try for an early resolution through ACAS.

He also repeated claims of substantial flaws with the work despite not having mentioned them before. And again referenced his need to have terminated her (sounding a bit like a dalek)

My Niece is still full of fighting spirit and is not in urgent need of the money as she is locked down with family. She also had a long discussion with the CAB who agreed with this thread, namely that it was close but they would err on calling her an employee

You need to issue the ET1. ACAS will then be automatically involved acting as concilators between between the parties. However, judging from the employers response he does not seem very open to concilation.

The bit about his need to have terminated youe niece is irrelevant, as she is not claiming for unfair dismissal. Any ET is unlikely to be impressed by claims of flawed work, which had never been mentioned when your niece was employed. In any case this is also irrelevant to the current ET claim. If the employer wants to pursue this, he should issue a seperate legal claim against your niece. It will be for the employer to prove his claim. Most sensible employers would not bother with the expense and work involved in this type of claim, with limited propects of recovery.

[mark88man]

So Round 1 is over. The letter sent claiming payment and holiday pay, and a response received denying that she was an employee and not entitled to pay or an employee tribunal. We did not claim she was an employee, rather a worker

So question do we go straight to an ET1 or try for an early resolution through ACAS.

He also repeated claims of substantial flaws with the work despite not having mentioned them before. And again referenced his need to have terminated her (sounding a bit like a dalek)

My Niece is still full of fighting spirit and is not in urgent need of the money as she is locked down with family. She also had a long discussion with the CAB who agreed with this thread, namely that it was close but they would err on calling her an employee

You need to issue the ET1. ACAS will then be automatically involved acting as concilators between between the parties. However, judging from the employers response he does not seem very open to concilation.

The bit about his need to have terminated youe niece is irrelevant, as she is not claiming for unfair dismissal. Any ET is unlikely to be impressed by claims of flawed work, which had never been mentioned when your niece was employed. In any case this is also irrelevant to the current ET claim. If the employer wants to pursue this, he should issue a seperate legal claim against your niece. It will be for the employer to prove his claim. Most sensible employers would not bother with the expense and work involved in this type of claim, with limited propects of recovery.

Thank you so much.

Can I just check that it is not mandatory to attempt early/quick resolution

[Grumpsimus]

Thank you so much.

Can I just check that it is not mandatory to attempt early/quick resolution

It is not mandatory to go for early concilation, but you have to have made an attempt at concilation at some stage.

If you go for early concilation you start the process by filling a form on the ACAS website. ACAS will then contact you to explain the process and ask you more about the problem. They then contact the employer, they act impartially and seek to settle the case before it goes to the Tribunal. Early concilation can last up to six weeks. If a settlement can't be reached ACAS will issue an early concilation certificate. You will have at least month from the date of the certificate to make a Tribunal claim.

If you just issue the ET1 claim, ACAS will then contact the parties and attempt to concilate between them.

[mark88man]

Update - niece has emailed Friday suggesting as an attempt at conciliation he should pay what he owes, but in the meantime we would be proceeding with more formal preparation for early conciliation through ACAS (the full ET route seems a big step for a relatively small money)

Onwards and upwards!

[mark88man]

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.

[staffordian]

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.

Sounds like a classic bully!

[dspp]

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.

Was this response in writing ? If so good. If not make contemporaneous notes of telecon (which you already have done).

Proceed with ET1 claim. If he continues down this pathway his stance will likely be to his detriment.

regards, dspp

[mark88man]

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.

Was this response in writing ? If so good. If not make contemporaneous notes of telecon (which you already have done).

Proceed with ET1 claim. If he continues down this pathway his stance will likely be to his detriment.

regards, dspp

Yes in writing. Just created a note that we are going to send as a reply that we were continuing despite his response - we were waiting for some feedback here and a little delay to cool it down before replying

[fisher]

You've done your best to give him a chance to pay. No need to meet F2F. He owes money he's not paying. Continue with ET1 or else go small claims. You need to start adding statutory interest to the invoice if going small claims. Ignore his bluster. Definitely file his reply as evidence.

[fisher]

If I understand correctly he has also not paid previous invoices in full, only paying for standard hours and not overtime. I would also be claiming for those extra hours.

[mark88man]

I raised that with my niece. She worries that her records were inadequate to support such a claim (ie her timesheets reflected core hours only) plus she is the type to put a bit extra in to get the job done. I think noone would reasonably expect her leaving the job to end like this. What would the standard of proof be for such a claim?