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Unfair dismissal - help please!
valos_mummy
Posts: 717 Forumite
Hi peeps 
I'm posting on behalf of my mother, and although I'm doing some research and she has been to see the CAB, any help would be gratefully received.
She has worked part time for approx 12 years, for her cousin in a shop. She worked on average 25 hours a week (over 3 days), and was paid every 4 weeks. Everything was pretty much fine until last month - she worked hard, always came in whenever anyone else called in sick and she enjoyed the work.
However, back in May she was talking to the other part time woman (who we'll call A) who was concerned she might not be getting the minimum wage.
Mum checked her own wages and p60 and came to the conclusion that she hadn't been getting the minimum wage either. Now the reason she had to check the p60 is that she's never received a payslip :eek:!! She really didn't realise that she had to have one, she thought her p60 was enough.
So she went to the boss, and an increase in wages took place from June onwards. She asked him whether he was going to backpay the difference (from the min wage increase in Oct 09 to May 10), and he said no and that it was her own fault for not checking her wages. A was still insisting her wages weren't right, so mum advised her to go to him. In November she got a sarky comment from the boss "you'll be pleased to know A is on proper wages now!"
Last month she spoke to him about her holidays. At the start of her employment she used to work on a Monday. He told her although the shop was closed on bank holiday Monday's she couldn't have this as holiday and would need to work another day in the week. She said this was fine, as long as she could have christmas holidays paid and he agreed. Verbally that is, as she's never had a contract either!
She was on 12 days holiday a year (although according to directgov she should be on 16.8) - she did query this 2 years ago with him, only to be told "I'm the f*****g boss, I'm the f*****g law around here".
Last year he told her that she could only have Christmas day paid, as the shop hadn't had a good year - and everyone else was only having this as well. This year mum worked extra hours and the business had a great year so when he told her last month that she was only having Christmas day paid she disagreed. He said she was, she said no, he said yes, then she said "shall I go home then?" to which he replied "go home, go bloody home then!" So she went.
Since then he has not attempted to contact her, so she's gathered she's been sacked. And since she's been approved for jobseekers, he must have told them she's been sacked otherwise they wouldn't be paying her dole if she'd walked out on her job.
Now she is going to write to him (I helped her with the letter) asking for her remaining holiday hours to be paid (based on the holiday hours she should have been receiving) and the backpay from Oct 09 - May 10 when he wasn't paying her the minimum wage. She is going to ask for all correspondence to be in writing and is also going to ask for a meeting with a third party to sort this out. She is also considering taking him to tribunal for unfair dismissal, and considering he's underpaid her, not given her entitled holiday, no wage slips, or contract, and not taken the correct procedure for dismissal I think she has a pretty good chance.
CAB have referred her to ACAS who have sent her some literature, but since she's not too internet savvy and a little unsure of how to go about this sort of thing, I was wondering if anyone has been in the same situation and if so, what did you do? Or just general advise about what to do and what NOT to do would be helpful. Thanks for reading
I'm posting on behalf of my mother, and although I'm doing some research and she has been to see the CAB, any help would be gratefully received.
She has worked part time for approx 12 years, for her cousin in a shop. She worked on average 25 hours a week (over 3 days), and was paid every 4 weeks. Everything was pretty much fine until last month - she worked hard, always came in whenever anyone else called in sick and she enjoyed the work.
However, back in May she was talking to the other part time woman (who we'll call A) who was concerned she might not be getting the minimum wage.
Mum checked her own wages and p60 and came to the conclusion that she hadn't been getting the minimum wage either. Now the reason she had to check the p60 is that she's never received a payslip :eek:!! She really didn't realise that she had to have one, she thought her p60 was enough.
So she went to the boss, and an increase in wages took place from June onwards. She asked him whether he was going to backpay the difference (from the min wage increase in Oct 09 to May 10), and he said no and that it was her own fault for not checking her wages. A was still insisting her wages weren't right, so mum advised her to go to him. In November she got a sarky comment from the boss "you'll be pleased to know A is on proper wages now!"
Last month she spoke to him about her holidays. At the start of her employment she used to work on a Monday. He told her although the shop was closed on bank holiday Monday's she couldn't have this as holiday and would need to work another day in the week. She said this was fine, as long as she could have christmas holidays paid and he agreed. Verbally that is, as she's never had a contract either!
She was on 12 days holiday a year (although according to directgov she should be on 16.8) - she did query this 2 years ago with him, only to be told "I'm the f*****g boss, I'm the f*****g law around here".
Last year he told her that she could only have Christmas day paid, as the shop hadn't had a good year - and everyone else was only having this as well. This year mum worked extra hours and the business had a great year so when he told her last month that she was only having Christmas day paid she disagreed. He said she was, she said no, he said yes, then she said "shall I go home then?" to which he replied "go home, go bloody home then!" So she went.
Since then he has not attempted to contact her, so she's gathered she's been sacked. And since she's been approved for jobseekers, he must have told them she's been sacked otherwise they wouldn't be paying her dole if she'd walked out on her job.
Now she is going to write to him (I helped her with the letter) asking for her remaining holiday hours to be paid (based on the holiday hours she should have been receiving) and the backpay from Oct 09 - May 10 when he wasn't paying her the minimum wage. She is going to ask for all correspondence to be in writing and is also going to ask for a meeting with a third party to sort this out. She is also considering taking him to tribunal for unfair dismissal, and considering he's underpaid her, not given her entitled holiday, no wage slips, or contract, and not taken the correct procedure for dismissal I think she has a pretty good chance.
CAB have referred her to ACAS who have sent her some literature, but since she's not too internet savvy and a little unsure of how to go about this sort of thing, I was wondering if anyone has been in the same situation and if so, what did you do? Or just general advise about what to do and what NOT to do would be helpful. Thanks for reading
Do good deeds and you could raise the curtain, do good deeds and you could really raise your life....
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this is difficult because in order to determine she had been sacked she would have had to turn up to work and be sent away again - the employer can argue she just walked out. The minimum wage is worth pursuing as is the shortfall in holiday but I think she'll struggle on the dismissal claim as she has in effect just left of her own volition.Debt free 4th April 2007.
New house. Bigger mortgage. MFWB after I have my buffer cash in place.0 -
That's what I thought; it was slightly ambigious (sp) because she didn't say "I'm going", she asked "shall I go" and he said "yes" (well, "bloody go home " but yes in effect). I thought it was unfair dismissal, but it might be constructive - this arose from her asking about her holiday rights as an employee and his refusing them. In her letter she has asked him to verify her position at the company, and if she has been dismissed, the reasons why.
What about the fact she had never been given a wage slip? And I mean never, not in all the years she's worked there. She knows an old co-worker who worked there for over a year and he never got a wage slip either. He might be willing to back her up if "wage slips" appear all of a sudden as a result of her complaint.Do good deeds and you could raise the curtain, do good deeds and you could really raise your life....0 -
there is a lot for her to dispute here, it is just that dismissal isn't one of them.
she needs professional advice, not opinion from random internet people.Debt free 4th April 2007.
New house. Bigger mortgage. MFWB after I have my buffer cash in place.0 -
If it is of any help I am an employment lawyer, and based on what you have said, I would make a claim for unfair dismissal, failure to pay the minimum wages, failure to provide statutory holiday, falure to provide wage slips, and (I bet) faliure to provide a written statement of terms and conditions. I would interpret the boss as having dismissed her - and given all the other failures I think a tribunal might to. There's never any guarantees, but I think it's a fair chance. It sounds like your CAB is more useless than most - is there a law centre nearby?0
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All she has to do is write to her employer and resign. In the letter she will need to explain her reasons for leaving and why she has delayed in contacting him. Then claim constructive dismissal.this is difficult because in order to determine she had been sacked she would have had to turn up to work and be sent away again - the employer can argue she just walked out. The minimum wage is worth pursuing as is the shortfall in holiday but I think she'll struggle on the dismissal claim as she has in effect just left of her own volition.The greater danger, for most of us, lies not in setting our aim too high and falling short; but in setting our aim too low and achieving our mark0 -
valos_mummy wrote: »That's what I thought; it was slightly ambigious (sp) because she didn't say "I'm going", she asked "shall I go" and he said "yes" (well, "bloody go home " but yes in effect). I thought it was unfair dismissal, but it might be constructive - this arose from her asking about her holiday rights as an employee and his refusing them. In her letter she has asked him to verify her position at the company, and if she has been dismissed, the reasons why.
What about the fact she had never been given a wage slip? And I mean never, not in all the years she's worked there. She knows an old co-worker who worked there for over a year and he never got a wage slip either. He might be willing to back her up if "wage slips" appear all of a sudden as a result of her complaint.
It is unlikely they will appear suddenly, at least not for the past twelve years. I doubt he will be able to remember everyone who has worked there for that long. If she has kept her P60's, this should enough for her to prove he wasn't complying with the National Minimum Wage Act 1998. It would help if she has any old shift notices, should as a rota chart etc. to prove what hours she was working.The greater danger, for most of us, lies not in setting our aim too high and falling short; but in setting our aim too low and achieving our mark0 -
Disagree. Although it will have the effect of throwing this to Constructive Dismissal, this is not necessarily a desirable outcome. Constructive Dismissal seems to me to be a way to claw yourself back from a resignation, which then means you have to prove that you were effectively dismissed and then prove that when you wrote a resignation letter you didn't really mean it.All she has to do is write to her employer and resign. In the letter she will need to explain her reasons for leaving and why she has delayed in contacting him. Then claim constructive dismissal.
Probably it is better to leave it in the frame of Unfair Dismissal rather than clouding the issue with the resignation letter, there is less to be proved.Hi, we’ve had to remove your signature. If you’re not sure why please read the forum rules or email the forum team if you’re still unsure - MSE ForumTeam0 -
Sorry, from my experience, tribunals do not prejudice a claimant for claiming constructive dismissal. Especially ones that have done so, because of their attempts to claim their statutory employment rights. It could not be mistaken that the claimant would not have done this lightly. She had been working there for twelve years and has recently learned of her rights under the National Minimum Wage Act, for her pay and the Working Time Regulations, for her holidays, as well other related legislation for other breaches of her employment rights.DVardysShadow wrote: »Disagree. Although it will have the effect of throwing this to Constructive Dismissal, this is not necessarily a desirable outcome. Constructive Dismissal seems to me to be a way to claw yourself back from a resignation, which then means you have to prove that you were effectively dismissed and then prove that when you wrote a resignation letter you didn't really mean it.
Probably it is better to leave it in the frame of Unfair Dismissal rather than clouding the issue with the resignation letter, there is less to be proved.The greater danger, for most of us, lies not in setting our aim too high and falling short; but in setting our aim too low and achieving our mark0 -
Many thanks everyone for the advice so far, I think I'm going to get her to go to a solicitor - there are far too many factors to consider, it's not just a matter of wages on it's own, or holiday on it's own but a lot of factors all combined. It's just the incident that led to her going did arise from her asserting her holiday rights.
She never throws out important paperwork though, she's very clued up in that respect, so chances are she has a lot of p60s. I think she'll need someone (probably an accountant) to calculate exactly what she's owed. Her take home wages increased by £21 after she bought the minimum wage matter to his attention, but her tax status might have changed as dad died in 2008.
Any more viewpoints definitely welcome, as well as opinions from anyone who has been through the tribunal process, thank you:)Do good deeds and you could raise the curtain, do good deeds and you could really raise your life....0 -
Just a quick question though; as I mentioned, mum has been to the job centre to go on jobseekers. She had the letter to say she's been approved - now she gave the job centre his details, and they've obviously been in contact with him. What would he had to have said in order for her to be able to get the benefit straight away? I was under the impression that if she walked out she'd have to wait for it, and if she was sacked she'd have to wait for it? :think:Do good deeds and you could raise the curtain, do good deeds and you could really raise your life....0
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