Ex-employer will not pay me!

stanleymog

Hi all,

I am after some advice, basically I handed in my notice for my job as I believe I was mis-sold it, full details are here forums.moneysavingexpert.com/showthread.php?t=2558789&highlight

I would just like to state that I didn't sign my contract as this is one of the reasons I quit, as it had different terms in it to the job I agreed to do.

When I handed in my notice, I did it via email and letter and the company didn't receive it for a week as the HR department were on holiday!

On 9th July was my expected pay day and I received nothing in my bank, I contacted the HR department via email (as that was all I had to go on) and had no answer, on the 15th I sent another email to a different department and then got a reply stating that someone was dealing with it but no contact details were given, I then replied can I have the contact details of this person to which I got the reply 'I have contacted this person for you'.

I then replied to this email asking for contact details only to be told that someone else is dealing with it, so basically I am going round in circles and not getting my wages.

Please can some one tell me what I can do and where I stand legally?

MrsManda

Did you work your notice?

stanleymog

Hi,

Thanks for your reply, no I did not work my notice, this was stated in the contract which I didn't sign. As soon as I got the contract I contacted the company and was told along the lines of 'take it or leave it' so I left.

SarEl

You don't stand in a strong position. You had a contract. You had that because you actually worked there. Whether or not you signed the paperwork doesn't matter in law. You were therefore obliged to work your notice. So in law you are in breach of contract.

Technically in law you are entitled to be paid for any time that you actually worked there. However, in law, they are entitled to sue you for any quantifiable loss resulting from your refusal to work your notice. In practice employers don't do this - unless you sue them for the money they owe you, in which case they often counter-claim.

I'm afraid that the rest of the information is irrelevant - you had a job and you were obliged to work notice. You can sue them, but they may likely sue you back. Why you walked is not relevant to any of this.

stanleymog

Thanks for your reply, so basically even though I was told at the interview it would be 40 hours per week, 8 hours per day which then changed to working 67-76 hours per week with 15 hour shifts when I received my contract I still do not have a leg to stand on?

SarEl

stanleymog wrote: »

Thanks for your reply, so basically even though I was told at the interview it would be 40 hours per week, 8 hours per day which then changed to working 67-76 hours per week with 15 hour shifts when I received my contract I still do not have a leg to stand on?

Well you can't prove what was said at interview, can you? And no contract can stipulate those sorts of hours unless you have opted out of the Working Time Regulations. But no, it isn't relevant anyway, I'm afraid. You were under contract from the minute you accepted the job - certainly from the minute you started work. At that point you had to give notice to quit. You didn't. In relation to your specific query - nothing else matters. Circumstances are not take into account. Even if you can prove them. Sorry.

DVardysShadow

SarEl - As I read it, we have a constructive dismissal here. While there is no claim which can be made for a constructive dismissal - and there may be some question over the evidence of a constructive dismissal, I do believe that your advice that notice must be worked does not apply if there was a constructive dismissal. Indeed, PILON may be due.

In contract terms, if the contract as understood by the employee was for 40 hours but the written contract was for substantially more hours with breach of WTD, the lack of a WTD waiver is evidence of the employee's understanding and at best in contract law [rather than employment law] we ahve a frustrated contract.

Uncertain

DVardysShadow wrote: »

SarEl - As I read it, we have a constructive dismissal here. While there is no claim which can be made for a constructive dismissal - and there may be some question over the evidence of a constructive dismissal, I do believe that your advice that notice must be worked does not apply if there was a constructive dismissal. Indeed, PILON may be due.

In contract terms, if the contract as understood by the employee was for 40 hours but the written contract was for substantially more hours with breach of WTD, the lack of a WTD waiver is evidence of the employee's understanding and at best in contract law [rather than employment law] we ahve a frustrated contract.

I was about to write something very similar.

Alternatively.....

The OP accepted a job on certain terms thereby entering a contract. However, the firm then tried to vary that contract substantially and asked the OP to sign a written contract on different terms from those agreed. He declined and they said "take it or leave it". He opted to "leave it". Has he not then been dismissed? Clearly not gross misconduct so is he not entitled to PILON?

SarEl

DVardysShadow wrote: »

SarEl - As I read it, we have a constructive dismissal here. While there is no claim which can be made for a constructive dismissal - and there may be some question over the evidence of a constructive dismissal, I do believe that your advice that notice must be worked does not apply if there was a constructive dismissal. Indeed, PILON may be due.

In contract terms, if the contract as understood by the employee was for 40 hours but the written contract was for substantially more hours with breach of WTD, the lack of a WTD waiver is evidence of the employee's understanding and at best in contract law [rather than employment law] we ahve a frustrated contract.

Clever - but I don't agree. The issue is evidential - there is no evidence that the contract was for fewer hours because the only firm evidence is a written statment of terms which the employee refused. We don't have any evidence that there hasn't been a waiver signed but I would agree that if one was not the employer was acting unlawfully. The lack of a WTD waiver is evidence of nothing but an employers failure to observe the law. And I assume that the employee noticed how many hours he was working before getting the written statement - working the hours suggested in the post might equally be taken as him knowing these were the hours - unless he walked out on day 1. But that would not frustrate a contract in employment law. I can't be certain whether it would in contract law generally (not my area) - but employment law would be the applicable law if the employer counter-sued. And frankly, it would cost so much to in legal costs to argue the case that the money would be more than wiped out. On both sides !

Uncertain

SarEl wrote: »

Clever - but I don't agree. The issue is evidential - there is no evidence that the contract was for fewer hours because the only firm evidence is a written statment of terms which the employee refused.

Does the fact that the OP refused to sign the (written) contract not suggest that it must be significantly different from what was verbally agreed?

By your argument a firm could promise anything verbally then threaten to sue the employee for walking out after refusing to sign something completely different a few weeks later. The could in effect get several weeks work for no pay?

SarEl

Especially since I have just gone back and read the original posts! WTD does not apply. It is a social care role - 40 hours plus sleep ins. The OP is including the sleep-ins as working time. Although there is some legal argument about this, it's a long way off settled, and such practices are common in the social care sector. Most employers have all their bases covered. We can await the outcome of the legal arguments - but they won't help the poster here. However the poster admits that he knew there were sleepins - just not that they were paid at a sleep in rate and not normal rate. I would suggest that this is a case of people making assumptions - his employers perhaps that he understood the sector, and the OP that he would be paid to sleep in.