Ex-boss deducted 100% of my wages - help!

SarahLou

I have a tendancy to waffle so apologies in advance but I don't want to skip any details that may help explain the situation fully.

Gist is:

Gave up long time career for a new job which would enable me to work far more sociable hours, be around to pick my kid up from school, etc, etc. Thought I'd hit gold.... started on 12th December 2011. (Did a few trials before this before I handed my notice in. I signed the contract with the new employer on 22nd November when I had done a few trial sessions with her (not paid for, I hasten to add). Its a small company - only 3 part time employees.

Within 12 hours of starting it came to light just how utterly incompetent and unprofessional my new boss was. But hey ho, so long as the work was there and I got paid everything would be OK, right? Wroooong....

I worked 21 hours in my first week with the new company, of which I was paid for 16 hours of via bank transfer. The overtime of 5 hours never materialised but didn't fret as it was early days. Neither did the fuel allowance. The written contract stated the hours of work at 16 hours a week. Verbally (and confirmed by my new colleagues) it was agreed that overtime was paid "cash in hand" to (and I quote) "avoid faffing around with tax and that crap".

All went well, apart from each day making me realise how absolutely disorganised things were (to the point of new boss sending me to the wrong properties - wrong addresses - wrong keys - wrong times - wrong days - etc, etc - not a good start you could say!)

When I first got offered the job I had signed a contract - in which stated 2 weeks notice period and that all materials provided by the boss must of course be returned in good working order. Fair enough.

Over the week and then my second week things took a turn for the worse - my boss seemed to lose the plot, was snappy and very rude on many occasions (including in my own home when she on two occasions came in and was shouting and screaming about the whereabouts of certain peoples keys (that she must have known I'd never even been to before, let alone had the keys for). On one occasion when the boss was inside my house demanding to see me (may I just add it was out of work hours, I was in the bath at the time, my OH had the displeasure of meeting her - but she wouldnt leave so I had to get out of the bath to come and speak to her!) She basically demanded to know where a tip was from a certain persons house. I told her there was no money, just a tin of biscuits and a card which I pointed to as they were in the hall by the bag of equiptment she provided to do the job itself. She indirectly accused me of stealing money as the week before this she had asked and we'd not had any tips that week either - this time she had the guts to say "thats funny as Mrs So-and-So said there was" (to which I just confirmed there hadn't been).

Anyway, she stormed out of the house, taking the bag of equipment with her, slamming my door on her way out whilst screaming that she'd not be going to the xmas night out as she wouldnt have time now and couldnt be !!!!!d. So that was that. My colleague and I didn't go as we knew she'd never pay up (i.e. it had meant to be free - the boss was going to pay for it).

So that was that. Next day, abusive voicemail message left on my mobile from the previous evening shouting about where I was as the venue which she'd booked for the meal was billing her for us not turning up. I explained to her that I wasnt the type of person who would go and sit in a pub and have a meal on my own!! She relented and agreed she could see why I didn't go. So that was that. Next thing I know she sacks my colleague claiming people had complained about her work but when asked who she couldnt give any information and had no written complaints.

This was on xmas eve. She told my colleague that she had sent her request in advertising both mine and her jobs to the job centre which would go on after xmas. So I spent all day christmas day worrying about it all.

I knew I'd done nothing wrong, never spoken out of terms with her, I was just the new girl at the end of the day! Never had any grievances or issues in any previous jobs or anything, EVER. Quite frankly I'd never worked or even met anyone quite like this woman.

Anyway, after much fretting, I decided to resign on boxing day.
I was very nice and just said I'd been offered another job (basically I didnt want any hassle, just wanted to call it a day after the farcical attitude and approach she'd take with things! - plus knew I'd bump into her in the school playground frequently as her child attends the same school as mine (typical!)).

She was initially fine and then demanded that I return all the equipment she'd given me immediately to her house. I didn't think anything of it - I'd washed it all and it was still drying, so I just said that was fine but that some of it was still damp but was freshly washed. And that was that.

Never thought anything more of it other than "phew, thank god thats over!" - that was until 3 days later when she was meant to pay me but alas no money at all was in my account. Email from her stating that as I didnt work 2 weeks notice and because of (and I quote "undocumented discrepancies in my work") she wasn't going to pay me for the 25 hours I worked the week before or the 5 hours overtime from the week before or indeed the £13 she owed me for the use of my car/fuel.

She hasnt replied to any phone calls, emails or texts since and I've not wanted to go round to her house as I'm a bit of a wimp if truth be known!!

Been to Citizens Advice Bureau who were rather unhelpful claiming they didnt have anyone who deals with employment issues there (great). Spoke to ACAS who recommend I write a formal grievance letter to her giving her 14 days to respond and if not then take it to Employment Tribunal stage. So thats what I did. Just today I've had a reply from her (also sent back to me by recorded delivery - thank heavens I've not bumped into her in the playground at school!) I hate face-to-face confontation!

Her letter states that she will pay me the money she owes me and I'll hear back from her in the next 14 days (at least she admits she does owe me the money!) BUT that she is going to reclaim costs back from me that she lost because I failed to work the 2 weeks notice and also because she is going to be conducting investigations to discover how much she owes me as she claims I left jobs early - there was ONE occasion when I left 15 mins early as the residents arrived home and they themselves said I should just go! So fair enough if she wants to deduct 15 mins pay but I fail to see how her word against mine will pan out. 99% of clients were out when I was present so what can I do when I know shes just saying this to get out of paying me the money she owes me. Having spoken to ex-employees since I resigned, it turns out its common-place and just what this woman does.

My questions are this:

I believe that unless you have worked for an employer for one month or more, the notice period is null and void, is this right?
(As she says in her letter that because I signed the contract on 22nd November then I should have worked the notice, but I signed it when I was offered the job, I still had to work my notice with my previous employer at that stage).

Secondly, can I "get her" on any issues surrounding illegal contracts as I have since found out its illegal for an employer to openly pay "cash in hand" and admit to not deducting tax/NI from it. I will shop her to HMRC for this but would rather do this after I've finished getting my money from her firstly!

Also she never provides pay slips - ever - full stop. From what I can see on google, this also makes the contract illegal?

Can I also just add at this point that when I resigned she demanded the immediate return of all the equipment she'd given me to do the job and made no mention of working the notice period and also failed to mention she'd be docking my pay. Also these "discrepencies in my work" (which in todays letter appear to be her claiming I'd been leaving jobs early and not stopping for the full duration), were never mentioned until she decided to withhold all my pay.

(Also I will state at this point that the colleague she sacked on xmas eve, she withheld 75% of her pay too - for "undisclosed discrepencies" too - she is going down the unfair dismissal route currently).

Any advice much appreciated as I've never been in this situation or anything similar beforehand.

Basically my ultimate goal is to:

• Get the money for the hours I worked for the week before I resigned + the unpaid overtime from the week before + the petrol allowance.
• And also put the "willies" up her as she seemingly does this to each and every employee she ever has.
• Then shop her to HMRC regarding the avoidance of tax/NI issue

Uncertain

SarahLou wrote: »

Her letter states that she will pay me the money she owes me and I'll hear back from her in the next 14 days (at least she admits she does owe me the money!) BUT that she is going to reclaim costs back from me that she lost because I failed to work the 2 weeks notice and also because she is going to be conducting investigations to discover how much she owes me as she claims I left jobs early - there was ONE occasion when I left 15 mins early as the residents arrived home and they themselves said I should just go! So fair enough if she wants to deduct 15 mins pay but I fail to see how her word against mine will pan out. 99% of clients were out when I was present so what can I do when I know shes just saying this to get out of paying me the money she owes me. Having spoken to ex-employees since I resigned, it turns out its common-place and just what this woman does.

My questions are this:

I believe that unless you have worked for an employer for one month or more, the notice period is null and void, is this right?

If your contract stated a certain period of notice this is binding. Working for less than a month does not change this.

An employer cannot legally withhold pay for your failure to work your notice. They must pay you for the days you worked plus any accrued holiday.

In theory the employer could attempt to claim any losses they suffered as a result of you failing to work your agreed notice. Like any legal claim they would have a duty to take all reasonable steps to minimise their losses and they would of course have to deduct what they would otherwise have paid you from their claim. Such claims are rare but can happen. There was a case on here very recently where a maverick employer tried this and lost!

SarahLou

Thanks. I wasn't 100% certain if the issue of working less than a month counted at all so thanks for clarifying that one for me.

So alright then, she might manage to claim back losses that way but what can I do regarding the "discrepencies" she is claiming when I only have my word against hers? (Although quite a few people who will back me up - i.e. ex employees who have had it happen to them too)

Also do I have a leg to stand on (if it comes to it) when it comes to the issue of paying cash in hand for the hours over the 16 contracted hours so she could avoid the "hassle" of sorting out tax and NI? Does that make the contract illegal? (And hence therefore mebbes a get-around clause for not working the notice).

Also she never provides pay slips (ever) which I also believe is illegal?

And finally, she never gave me my own copy of my contract (until now - which arrived in the post today in relation to my grievance against the fact she'd not paid me for the work I had already done before I resigned). I signed it on the spot when she offered me the job, and as such didn't recall it saying that she would deduct pay to cover for losses in the result of me not working my notice. I recalled the 2 week requirement but again, she demanded the immediate return of everything there and then and never mentioned working the notice.

Uncertain

SarahLou wrote: »

I recalled the 2 week requirement but again, she demanded the immediate return of everything there and then and never mentioned working the notice.

You could argue that she refused to have you work your notice. In this case she would owe you payment in lieu........

Obviously you can report any wrong doings of her's to the proper authority. However, this doesn't relieve you of your contractual responsibilities. Two (or more) wrongs don't make a right!

By the sound of it you have run into a right b1tch who believes she can get away with behaving how she chooses. The problem is you are going to have an uphill battle to extract you dues, not helped by the counter argument about contractual notice.

Sometimes attack is the best form of defence but only you know how much grief it is worth.

SarahLou

Thanks again

I don't want to have to go down the employment tribunal route with her but I fail to see how she should get away with not paying me or work I had already done. If I'd known I'd not get paid for it, I wouldn't have done it (heck, I'd not have put my notice in with my previous employer - ooooh, I do wish I'd had a crystal ball!)

Question is then, would you wait for 14 days and see what she writes back with? (See if theres a cheque in with it with x amount minus whatever she claims I didn't work)? Or respond in the meantime confirming that I know I didn't leave early on any job barring the one she already knew about (as I told her about the particular incident when the residents returned home while I was still present and said I should just get myself away) - as I'd not mind if she deducted that 15 minutes but knowing what she is like, I suspect she'll try and fleece me out of a considerable amount more despite knowing fine well she will be 100% unable to prove I left any jobs early (firstly because I know I didn't and secondly because there is no possible way she would have gained this "proof"!)

What would you do in my shoes?

Uncertain

You have three months (less a day) in which to lodge an ET claim. The time limit is strict.

You could however pursue a claim for unpaid wages in the small claims court where the time limit is six years. The ET route is free whereas you would have to pay an up front fee if you take her to court although this would normally be added to the claim assuming you win.

I would hold on for a bit but keep within the ET time limit.

SarahLou

Ok, good to know, thanks. I'll update this thread with any further questions should any arise depending on what comes of her next letter.

heretolearn_2

She sounds like a bit of a nut job - it's up to you to think whether it's worth the aggro for a small amount, but the ET is the way to go if you need to.

... but I'd also drop the innocent act about not knowing you shouldn't be paid cash in hand to avoid paying tax! Come off it. I wouldn't even mention any of that.

SarahLou

Fair point! Duly noted

I think nut job is a perfect description for this person! I just wish I'd known of (and had chance to speak to) all the previous employees before I got my sorry !!! involved, lol.

Badger_Lady

I do think that a tribunal is the best way to negotiate with nut jobs - it's the only way to get them to see reason. I've done it myself, nearly 8 years ago now

From what you've relayed, it sounds like she was doing whatever she felt like, and then after hearing from you she got some proper legal advice. She has probably told her lawyer "employee just quit without working notice", so the lawyer has informed her that she could sue for breach of contract. The other stuff (discrepencies etc) I suspect she's added herself and I wouldn't take too seriously. As you say, they can't be proven and are probably irrelevant anyway.

So you would definitely win your owed wages in a tribunal and she admits that. So it's just the difficult issue of whether you refused to work notice, or whether she refused to let you work notice. Or whether it was a mutual agreement. What evidence have you got for this conversation? Can you remember exactly what was said, were there any witnesses?

Depending on what the tribunal ruled, either she would owe you another two weeks' contractual wages, or you would owe her the cost of any clients she was unable to service in that time due to not having any staff to cover them! She would have to be able to prove those losses, but my guess from your type of work and from the fact that you resigned immediately after your colleague was dismissed, is that she could actually have suffered some genuine loss and that it might be a higher value than your wages.

So this is important - she's saying "let's call it quits", i.e. she pays you nothing and you pay her nothing... but you need to either be willing to take the risk of being counter-sued at tribunal or you have to be absolutely confident that she has no case against you.

SarahLou

Thanks Badger_Lady. Very good points raised. I'll see what comes of the next letter from her (in theory within 14 days). I may well be back on here for further advice depending on the outcome of the next correspondence from her.

Thats if I don't bump into her in the playground in the meantime :eek: I've been wearing a hat and attempting to go in-cognito for weeks now, lol. :rotfl:

Regarding the conversation we had when I resigned, it was done in her hallway - her hubby and kids were upstairs at the time but I don't suppose I'd have them for back up if it came to it!