Not paid salary

mountainofdebt

I know that not to pay a salary to someone is classed as an unlawful deduction of salary but do I go through an employment tribunial or the small claims court to recover this money?

pph

Hi - just raising this one again as my girlfriend's salary has not been paid this year and they are "hoping to do it 4th March" but this deadline has been pushed back and back. She is actively seeking employment and am just wondering when she left her current role, what would be the legal position and strategy to recover lost earnings please? They are in breach of contract not paying salary as I understand it. As I also understand it it means she can give them zero notice and hop to another job, then take the old employer through a small claims court? £30 and the old company won't bother to turn up and they will pay her her wages, I am hoping this is the way it works?

Thanks in advance.

MrRedundant

Risky strategy. Why are they not paying salaries?

Googlewhacker

when was the last time she was actually paid?

pph

They've drip fed her about a month's salary so far in 2011, company is claiming one of their clients is not paying them.

Thing is, she would have moved anyway so she wants to just get out with minimal fuss etc rather than stick with them and try to resolve it - the company are cowboys and there is other work out there for her. But if she were to be offered a job tomorrow, we don't want the current company to withhold monies owed to her because she's leaving (type of thing the do unfortunately).

The courts service suggested this place which lays out pretty much the exact example in layman's terms. She fits all three criteria for constructive dismissal.

http://www.inbrief.co.uk/employees/constructive-dismissal.htm

The courts service said that this type of action had increased 3 fold over the last year, but step 1 is a free employment tribunal.

DVardysShadow

[ideally you should start a new thread]

This is only what I would do in the circumstance, rather than advice. If I got a new job, I would leave and give notice as required by the contract, but knocking off day for day every unpaid day from before payday. You are still entitled to your pay and can take the matter to an ET or the SCC

BenS1

My girlfriend went through a simular situation, and we had to go through an employment tribunaral. We hired a solicitor for the day in court, and the judge basicly made us settle out of court since it was clear that her employer was in the wrong. She got 50% of what we claiming for in the settlement, but in the end we throught it wasn't worth the hasstle and stress to go for the full amount.

This was different circumstances through, with no written contract and the salary was verbally agreed and then changed.

You need to put in a claim within 3 months of not getting paid through, so it depends on how long she has been waiting. I'd personally start looking for another job if she hasn't already.

pph

BenS1 wrote: »

This was different circumstances through, with no written contract and the salary was verbally agreed and then changed.

You need to put in a claim within 3 months of not getting paid through, so it depends on how long she has been waiting. I'd personally start looking for another job if she hasn't already.

3 months limit is fine. Work offers are coming in but she needs to start withing a month. Gah.

I would hope that if they did turn up the judge would have no reason to ask us to settle out of court. She has a clear written contract, and I've been through it and there's no real wriggle room for them. Her work has been exemplary, no problems, past probation fine etc.

Acas recommended an online solicitor service (wouldn't normally but Acas recommended so..) and this was their response:

a) Make sure you go through the grievance / tribuanal procedure properly and
b) "As to leaving without serving your notice, you can certainly argue that your employer’s failure to pay you on time, or at all, has amounted to a fundamental breach of contract and as a result you can treat yourself as having been constructively dismissed and resign with immediate effect."

jazzyman01

PPH, you have the solution. She has not been paid, has had a number of excuses and has still not received the full amount she is owed. As a result the second choice is the one I would go for. She should write a letter stating that she has had a number of promises regarding her wages and she has still not been paid. This is in breach of the contract of employment and she thereofre considers this to be a fundamental breach of the contract by the Company and therefore does not require her to give any notice.

If she has been offered another job then she can take one of them. She can explain why she left her previous employer, even showing them a copy of the letter.

The worst her existing company can do is not provide a reference as providing a false reference could leave them open to a claim from her.

The 3 months from an ET claim starts from the last time of the breach so if she should have been paid on say 20 February and clearly this has not been the case, then the 3 months starts from there. I hope that she has sent a letter to the relevant person regarding non payment of wages?