Employment Tribunal queries

sangie595

SeduLOUs wrote: »

I do completely see your point. I understand how things should be done, but my partner's situation has widely opened my eyes to what actually happens when an employer believes they are untouchable and can do whatever they want without challenge or consequence (and simply sacks anyone who dares to question them).

We are sitting on a strong case, but at £950 to start a hearing it's still extremely difficult to decide how to proceed. On principle we want justice to be served, but there is always the risk on the day that the case fails and we end up with even less money then we have now, and the whole thing will be time consuming, expensive and stressful at a time when job-hunting or impressing a new employer should be the priority.

It's hardly surprising that people put up with this sort of nonsense from employers really. It's hard enough finding a job without the stigma of a dismissal or even a successful ET on your record. Scary stuff.

Believe me I do understand. And justice is something that never gets served up, even if you can afford the case, and even if you win. The wearing down of the process makes sure of that. A strong case can dissolve in a minute. There is always risk. And I would like to say that employers never make stuff up (including documents) and that tribunals never fall for them. Unfortunately, I can't. Very occasionally they get caught out. More often they don't. nd these days it is a lot to risk, not just in monetary terms, and I know why a lot of people just walk away. Sometimes that is the best thing for a person to do.

jobbingmusician

I have only skimmed this thread, but think you may be jumping the gun. Am I correct that

Employer has underpaid
You have pointed this out to them
They have (at least partially) agreed and you are awaiting an offer
?

Almost independently, I would challenge one of your assertions. Although I generally take the employee's side, I would not agree that the employer has (necessarily) breached the contract. It is of course possible that they have deliberately and cynically done this. More likely, they have made a mistake. And more importantly, they could successfully argue that they have. Any tribunal would consider this possiblilty and would want to see attempts by you to sort things out with the employer before going to tribunal. On this basis, I would advise you to research further how far back you are legally entitled to go in reclaiming underpayments, and accept any offer which covers these (plus interest?)

Mersey_2

sangie595 wrote: »

One further point. If they have underpaid her, then I guess she isn't the only person paid in this way. The employer could argue custom and practice and an implied contract - or even that the contract had been varied subsequently. If this applies to all their employees, then (a) it might be hard to argue against as contracts do change and there is no requirement to reissue the statement of terms, and (b) you would have to claim to a tribunal - the county court has no jurisdiction in matters of employment law and determining the terms of employment in the event of a dispute is the tribunals jurisdiction.

An employer could do, but they would fail. Statute overrides custom.


I'd also be interested whether this firm is paying National Insurance Contributions [and the NMW] or also failing to pay these for those 8+ days pa for all employees too. Rogue employers are often found wanting once reported to HMRC.


The County Court does deal with breaches of contract (including contracts of employment); but, you're right that they cannot determine disputes specific to employment law. As others have said it has the ability to consider losses over the past 6 years.


Also, a fundamental change in an employment contract cannot be unilateral - it needs to be preferably agreed, or notified in writing, ie allowing the employee to respond or resign.

Mersey_2

bazster - you're correct in what you say.


Incidentally, not being able to quantify the loss exactly is not necessarily a problem. Although I always prefer to issue proceedings for a specified sum, the County Court can assess and award damages. This is more normal in personal injury claims than breach of contract, but I have seen both. ie it's fairly common for an ex-employee to not give former employees docs in order for them to quantify their potential claims.


However, a letter requesting the same often suffices. If not, a pre-action application for disclosure of the docs is available at £155. Issuing a claim itself costs from as little as £35 (this allows you to attach docs.) A specific money claim online costs from £25. Far cheaper and quicker than a Tribunal.

sangie595

Mersey wrote: »

An employer could do, but they would fail. Statute overrides custom.


I'd also be interested whether this firm is paying National Insurance Contributions [and the NMW] or also failing to pay these for those 8+ days pa for all employees too. Rogue employers are often found wanting once reported to HMRC.


The County Court does deal with breaches of contract (including contracts of employment); but, you're right that they cannot determine disputes specific to employment law. As others have said it has the ability to consider losses over the past 6 years.


Also, a fundamental change in an employment contract cannot be unilateral - it needs to be preferably agreed, or notified in writing, ie allowing the employee to respond or resign.

There is no evidence that we are discussing statutory leave or a failure to comply with any statutory requirement. There is no evidence the OP's partner was on the NMW or that the firm has failed to pay the NMW or their taxation liabilities. There is no evidence that they are a "rogue" employer. And nobody suggested that unilateral changes were permitted - what was questionable was what an employer may do when faced with this sort of situation.


Apart from those points, your post is entirely relevant.

Mersey_2

sangie595 wrote: »

And nobody suggested that unilateral changes were permitted - what was questionable was what an employer may do when faced with this sort of situation.

Sangie595 @ 30.11.15 4.44pm:


"Creating paperwork is easy. And they don't actually need an employees (sic) agreement either."


I realise forging documents goes on a lot - I'm a Counter Fraud practitioner - but, it doesn't make it lawful.


Just a reminder: this is a forum for Claimants and Appellants.


I find it utterly bizarre that some posters on here tell almost all posters that they shouldn't even bother contemplating any legal action, as they have 0% chance of success.


I realise there's an employer's standpoint to everything; but it isn't they who are seeking advice here.

tomtontom

Mersey wrote: »

Just a reminder: this is a forum for Claimants and Appellants.

Where is that stated? This board is for Employment queries, which is a two way relationship. I'm not aware of any rule that states employers cannot ask for advice or give viewpoints on here.

Mersey_2

I would have thought it was self-evident.


Martin Lewis, "MSE forums are a great network that gives help for consumers seeking redress, especially those wondering if they have a valid claim against their bank, boss or retailer."


If you man specifically re Employment, this is for employees, as
evidenced by the name and the posters themselves.


Of course, employers can state that they'd prefer no-one to ever intimate claims against them; but there are plenty of forums out there for employers to share advice from the IoD to online updates from law firms such a Weightmans.

sangie595

Mersey wrote: »

Sangie595 @ 30.11.15 4.44pm:


"Creating paperwork is easy. And they don't actually need an employees (sic) agreement either."


I realise forging documents goes on a lot - I'm a Counter Fraud practitioner - but, it doesn't make it lawful.


Just a reminder: this is a forum for Claimants and Appellants.


I find it utterly bizarre that some posters on here tell almost all posters that they shouldn't even bother contemplating any legal action, as they have 0% chance of success.


I realise there's an employer's standpoint to everything; but it isn't they who are seeking advice here.

This a forum for posters - there are no other rules about it being for claimants or appellants.

I presume you would prefer it if we didn't tell people the truth about what goes on? After all, there are dozens of people around posting on MSE instead of going to the solicitors office because they have money to burn. And a tribunal sure can burn a lot of it.

People are entitled to know what they are up against so that they can make an informed decision.

Alternatively I could have just said, "Yeah, go for it, you're sure to win despite the fact that right now you have no evidence and you are guessing what you may or may not be owed".. Works for me - I'll try telling everyone that and see how far it gets them.

BobQ

sangie595 wrote: »

There is no evidence that we are discussing statutory leave or a failure to comply with any statutory requirement. There is no evidence the OP's partner was on the NMW or that the firm has failed to pay the NMW or their taxation liabilities. There is no evidence that they are a "rogue" employer. And nobody suggested that unilateral changes were permitted - what was questionable was what an employer may do when faced with this sort of situation.


Apart from those points, your post is entirely relevant.

There may not be evidence but it is perfectly reasonable to suggest the OP checks the facts. For example if the employee was only receiving statutory leave (which includes BH), will be unlawful if the employer asks them to work or fails to give another day off if the result is that they do not receive the statutory minimum.