Ex employer withholding holiday pay

nickih28

My DD was finished from her job in beginning of November, she was promised her wages up to date on the day she finsihed, this she didnt get, after a few emails requesting her wages and holiday pay she collected a cheque two weeks after she finished.

The cheque was for 2 weeks money and did not include holiday pay, (she is owed 6.5 days), she emailed requesting the holiday pay and after about a week got a reply saying he didnt think he owed any but would get his accountant to look into it, a few days later he emailed to say she was owed holiday pay and it would be looked at in due course!

Its now over a month since she finished and he is still saying his accountant will look at it, she has receieved a P45 which doesnt include the holiday pay, or the figures from the P45 she gave into them from her previous job, she also has never recieved the last 2 weeks payslips despite requesting them.

We have contacted ACAS who are starting a pre-litigation claim, but obviously this will take time and she now has no money, and I think he will feed them the same story becuase he just doesnt want to pay.

I know 6.5 days is not a lot of money in the grand scheme of things but for a teenager with no money it is a lot and i am not in a position to help her out, she has told him she has gone to ACAS but he doesnt seem to care.

Does anyone have any ideas how to approach him to get this money paid, he obviously has payroll being run for other employees every week so I am unsure why it would take an accountant this long to make a simple calculation!!

Any help or advice would be appreciated !

Uncertain

Unfortunately any legal moves will take quite some time if the ex-employer chooses to be difficult. Ultimately they will have to pay what is owed so it is really a matter of making them see sense.

Was there any "bad blood" either during her time there or surrounding her leaving?

If you do need to lodge a formal ET claim this must be done within three months of her leaving and the time limit is strict.

I'm not up to date enough to know if the ACAS "pre litigation claim" you mention technically starts this process or not. Perhaps somebody can advise on this for certain?

The ACAS advice line gets quite a bad press on here so it is worth double checking anything they tell you.

nickih28

Hi thanks for answering,

No not any bad blood as such, she was taken on as a trainee, but no proper training was given, not even sure why they took her on as they seemed happy to have her sitting round with not much to do, she was already looking for a new job when they told her the training wasn't working out. I must admit I had a bad feeling about the job before she started and didn't really want her to take it, but she decided to take the chance ! She never received a contract or any terms and conditions.

From what I can gather he doesn't like to pay out, always putting off suppliers etc, he never paid her on the correct day, sometimes would pay by cheque, sometimes direct into bank, I thought that perhaps the company was in trouble but he often takes the staff out drinking on the Company credit card.

I am certain that he is dragging this out on purpose, I don't believe for one minute that it would take this long to sort out, his accountant would surely have asked when he was putting her final pay through if she was owed any holidays, I think he assumed DD wouldn't know she had to be paid for any untaken holidays, which she didn't until I told her !

Uncertain

nickih28 wrote: »

She never received a contract or any terms and conditions.

Well if you do have to make a tribunal claim you can add this on. You can no longer make this claim on its own, only add it to some other valid claim such as failure to pay her holiday.

They don't have to but the tribunal MAY award her some extra money for this - particularly if they think he has messed her around for no good reason!

nickih28

Uncertain wrote: »

Well if you do have to make a tribunal claim you can add this on. You can no longer make this claim on its own, only add it to some other valid claim such as failure to pay her holiday.

They don't have to but the tribunal MAY award her some extra money for this - particularly if they think he has messed her around for no good reason!

Thanks for that info, as she has now started another job, would she have to pay to take it to tribunal?

zzzLazyDaisy

There are no fees for making a claim to tribunal (though this may change if the governments proposals go through).

I am another one who would be interested to know if the ACAS pre-claim procedure officially affects the time limit for lodging a claim.

EDIT - more information here about the procedure, but the issue of whether the time limit is affected is not addressed. Therefore I would play safe and if it gets to within a couple of weeks of the deadline and the employer hasn't paid up, I'd lodge the claim anyway.

http://www.acas.org.uk/index.aspx?articleid=2744

nickih28

I am waiting for ACAS to phone for more details, they should be phoning today or tomorrow, they will then speak to her EX employer and try and get an agreement, I will ask them when they phone if it effects the time limits

doodoot

My ex-employer pulled the same trick - gave me a week in hand minus my accrued holiday pay, and didn't give a written statement of work when I started.

Employment Tribunal looks like they are going to award me by default due to him not responding to their letters...:j

I didn't bother with ACAS as they get involved once you start a claim with ET anyway, but the other poster is correct in that a claim has to be lodged within 3 months.

Your daughter should get her holiday that is owed, plus the court can award between 2-4 weeks pay as damages for not receiving a written statement - that in itself is a breach of employment law.

SarEl

Nothing on God's earth changes a tribunal time-limit! It is three month's less a day; six months in very exceptional circumstances and almost always only in discrimination claims; and hell will occasionally freeze over and it could be longer but you'd need a really good lawyer to manage that one!

In other words - three months less a day is the time-limit for the claim and ACAS or not it remains the limit.

zzzLazyDaisy

SarEl wrote: »

Nothing on God's earth changes a tribunal time-limit!

Hi SarEl - you might want to explain that to this Government, it would save them wasting time on the consultation procedure :A

I think you may have misunderstood the query raised by Uncertain and myself.

As you know, one of the considerations in the Government's consultation document on the proposed changes to the employment tribunal system is a mandatory referral to a pre-claims procedure via ACAS, which would have the effect of suspending the time limit for one month to enable ACAS to attempt to settle the case. If this is unsuccessful the time limit would then re-start

http://eortrial.co.uk/default.aspx?id=1145617

As far as I am aware the suspension of time limit has not yet been brought in, but since the pre-claims procedure is being used in OP's case, it is worth checking what the position is (I hold my hands up and admit that I am no longer in practice, so while I do try and keep an eye on these things, it is entirely possible that some of the proposed changes may have been implemented without me being aware of this).

nickih28

Thanks, he has admitted he owes holiday pay, he is stalling on actually paying it, so i don't know how she would stand with a tribunal as he just keeps saying its with his accountant !