Can an Employer Change a PILON Redundancy Agreement?

getmore4less

Have they acknowledged you are due the payment in any of these emails?

Woodie_Woodpeck

They sent me an email once I received my P45:

I write per your email to my receptionist below to clarify the position per our understanding.

Your employment was terminated during a discussion with Manager which resulted in your leaving the company prior to the end of September.

After this you were sent an email detailing options for which you chose one.

By the time the wages were processed you received full months nett of pay for September which was contrary to your suggestion but for which you said nothing.

This inacted one of the other two options, namely that your employment would be worked out on gardening leaving with the agreement that you would be given reasonable flexibility to secure alternative employment.

Your Manager received a reference request, from, I believe, Company-X, which confirmed you had been offered a job subject to our reference, replied to positively, and that your start date would be 16th October.

We accordingly considered you an employee up to 15th and paid you as such nett of taxes, issuing a P45 on that day.

I trust this clarifies the situation.

Regards

However, I replied stating the following:

As you can see from the email thread below, I have sent emails on the following dates:

29 September 2017 18:10
29 September 2017 18:24
2 October 2017 13:29
3 October 2017 10:15
4 October 2017 09:12
4 October 2017 09:31
5 October 2017 10:18
12 October 2017 18:09
9 November 2017 09:32
24 November 2017 08:16

These emails complement the telephone conversations and an SMS, evidenced with screenshots within <Google Photos Link>, on the following dates:

2 October 2017 09:08 1m50S Receptionist-X
3 October 2017 10:11 0M33S Receptionist-X
4 October 2017 09:06 0M52S Receptionist-X
5 October 2017 10:01 0M39S Manager
5 October 2017 10:03 5M11S Manager
12 October 2017 16:04 1M09S Manager
12 October 2017 16:42 0M02S Manager
12 October 2017 16:44 SMS Manager
12 October 2017 16:56 0M02S Manager
12 October 2017 16:56 0M34S Manager
12 October 2017 17:25 5M38S Manager

This all complements the following ACAS Conciliation Process:

22 October 2017 Notification for ACAS Early Conciliation
1 November 2017 Certificate for ACAS Early Conciliation

All of this evidence confirms that I have made a substantial effort to make Manager aware of the incorrect payments. The ACAS summary from 1st November below also confirms that Manager confirmed to ACAS that I am owed money.

Please review all of this information and confirm your position in relation to my requests outlined via email this morning below.

The SMS they sent me on 12th October described above contained the following contents:

"Sorry XXXXX - reception not good where I am. Essentially negotiating with Key-Investor-X before we know where we stand. Will keep you posted. Manager"

The summary sent to me from ACAS was as follows:

I spoke with the Respondent yesterday, as per the Voicemail I left for you. The Respondent acknowledges some of the payment had been made to you and he will pay the other money to you as and when he has the funds to do so, if he gets the funding he hopes for this will be all cleared in one payment. If not, he will pay what he can and when, to ensure the business does not go into receivership, which is what he is trying to avoid, as that may result in you receiving no money from him.

getmore4less

Your employment was terminated during a discussion with Manager which resulted in your leaving the company prior to the end of September.

if that was the Friday 22 Sept meeting the email on the 25th implies the final decision was made after the meeting and notified to you on the 25th.
It could be implied that leaving the company does mean termination and that a PILON payment would be due.

By the time the wages were processed you received full months nett of pay for September which was contrary to your suggestion but for which you said nothing.

I suspect the payroll run had already started, do you know the cut off date? if you got the email 25th and replied it would be Mon/Tue of the last week of sept, when was pay day?

They do acknowledge they got your choice.

I think you need to confirm with them if they are going to pay out if they get the money or not.

if they are, are you happy wait?

if not or not happy to wait then you need to build the case and take it further ending up at ET or small claims, probably ET as this is not a simple non payment of wages there is the were they contracted to PILON.

I think it is worth pursuing this.

edit:
(More than once they are saying the decision was made in the meeting on the 22nd were options discussed at that time?)

Woodie_Woodpeck

Hi,

I hope the following bullet points answer the questions above. Please let me know if not...

I imagine that the payroll had not already started when the manager confirmed that they would make the necessary arrangements on the 26th of September given that there are just a dozen or so employees in the company and the processes are very manual. The pay day was 29th September whereby the board members had to pay the salaries of the staff due to an investor withdrawing from their expected quarterly seed investment just before the pay day. I believe that I even provided the payroll person with my bank account details during the same week via my old work email account because they had to move all the staff to their own accounting process.

I asked them to confirm their position when listing the communications above and they have not replied. I am not sure what content I should write within an additional email that is different to my previous request. I believe that they will stick to their decision to choose option 2.

All of the redundancy options were discussed on Friday 22nd during the meeting to inform me of the role becoming redundant. I asked them to put it in writing which they did on Monday the 25th. I replied with my choice on Tuesday 26th.

I am not really sure how complicated or painful the employment tribunal process would be. I tried to attend a solicitor drop in clinic today for free advice but realised that I should have arrived before the clinic began because they only had limited places available. The next clinic is in 2 weeks time. I wonder if I should approach a no-win no-fee solicitor.

Many Thanks.

getmore4less

No win no fee if they win the fee will probably be more than you will get

Remember you are only asking for 3 months less the 3 weeks they did pay you, around £7600. after tax and NI net will be less.(its says above the £3,300pm was net but you have another job so the tax will be more.)

if smart they could also deduct the extra holiday pay you accrued in the 3weeks as you are back dating the effective termination date to the 22nd and you don't accrue holidays with PILON.

if you want to use ET, you have 3 month less a day to file from the date you became aware.

That will either 3 months from 22nd Sept or it might be the day you got paid Sept and the PILON was not included or might be the day you got the P45 15Oct?

They may be stalling to go past the ET claim date.

Not sure if there is enough there acceptable to a court that they have acknowledged the debt so keep trying.

Stop emails and move to writing, focus on the bits that acknowledged the debt and reiterate that they have also confirmed this with ACAS....

Include the gross amount you believe you are due

As once you have that you have 6 years to recover from last communication.

Woodie_Woodpeck

How can I have evidence of written communications? I would have thought that the ET is the only option now if the solicitor fees would be significant. Alas I would love to know the law in relation to emailed communications without having received anything from them on signed paper.

Thanks