employee rights of still being employed but not paid fully during lockdown period

anto135

Just looking for advice more than anything.

My partner's carrying out her level 3 apprenticeship in hairdressing working in a salon, she's been there since October last year. She originally started the apprenticeship a few years back but left for a normal job and has gone back to complete her level 3, due to her technically starting the apprenticeship again she isn't entitled to the national minimum wage but does get more than the apprenticeship wage. She works 4 days a week around 38 hours and comes out with £190, I'm pretty sure it's £5 an hour. I should also state that she has no written contract of employment, I'm presuming it's a verbal contract so this will probably affect her rights anyway.

During the lockdown period, she was in contact with her employer who was trying to claim furlough for her. Her employer actually paid her £100 a week during this period (from her own pocket) whilst trying to claim furlough for her. Throughout the period she kept in contact to see what was going on and it turned out she was unable to claim the furlough because her employer never "put her on the books" i'm presuming by that she meant she never put her on an actual payroll through PAYE. After this had happened she advised my partner that due to this she would be getting a loan to help improve the salon and from this she would pay my partner the difference in what she should have received had she been able to claim furlough for her. 

Her employer got the loan and improved the salon but never paid my partner what she said she would. She's also been advised today that she wouldn't be able to use her remaining holidays as "most apprentices were laid off during this period and she was paid". I understand you could argue it was good of her to pay £100 a month during this period but since she has gone back her relationship with the manager has changed for the worse as she's been made to feel as though she's in the wrong for asking about what her boss had promised her in terms of pay. The main question I'm wondering is if someone is still employed (without a written contract) during the lockdown period when there was no work, what are their rights to pay if their employer never stated to her directly that she is no longer employed?

I understand she probably doesn't have much rights at all in terms of this mainly due to her not having a contract and the fact of what was actually going on at the time. The main thing I'm wondering is about her employer stating she can't use any holidays due to the fact that she was paid (not fully and not the 80%) during the lockdown period, I could understand if this was stated to her at the time but surely she's not able to tell her she can't get the holidays she's entitled to because "most apprentices were laid off during that period and you were paid".

I might seem to be coming off as in the wrong due to it seeming as though her employers done well by her to pay her in this period. The thing is though, since she's gone back my partners and her employers relationship has turned sour due to the way she's been treated on a couple of occasion by her employer. She actually said to her the fact she paid her caused arguments with her husband and she actually said to her that she was a financial burden.

Any advice would be appreciated. 

sammyjammy

There are separate issues here, firstly the fact she didn't register her employee with HMRC, this breaks the law.
As there was no data held on HMRC records its correct in those circumstances that she wasn't entitled to furlough, the money that the employer paid her was indeed a goodwill payment, it could have been you're not at work therefore you're not paid, it maybe that employer did this to cover up the fact she had broken the law with not registering employee.

It really depends on how your wife wants to play this, she has little to no employment rights as she has been employed less than two years.  She does have a contract even if its not written its implied.  

At the end of the day it comes down to whether your wife wants to keep her job or not as to what she does next.  Either way I would be checking her tax account to see if she is indeed now registered as working, if not there all kinds of implications as regards pension/benefits in the future.

Diamandis

It doesn't sound like she's a proper apprentice if there's no written agreement. Does she have a contact person at the training provider who could offer advice? 

Hannimal

Is it £100 a week or £100 per month? 

Nick212010

Diamandis said:

It doesn't sound like she's a proper apprentice if there's no written agreement. Does she have a contact person at the training provider who could offer advice? 

The training provider (most likely a further education college) won’t be able to offer much advice as the employment relationship is between the owner/manager and the apprentice. However the training provider will have asked the questions regarding the apprentice’s employment status, amongst health and safety and other such due diligence. But this is usually a signed checklist and isn’t very robust. It’s usually along the lines of; “Does the apprentice hold a current contract of employment?” and if the owner/manager is dishonest and lies, then the training provider can only act based on the information the employer tells them. 

anto135

Apologies to have to bump this thread but it makes more sense than starting something fresh.

Due to the way she was being treated, she left the job.

The employer is now advising that she’d be looking to seek legal recourse in terms of recouping the payments she received during the lockdown period when she paid her £100 a week.

could anyone advise where my partner stands with this? 

HampshireH

How was your partner paid.

Was it cash in hand, is there a paper trail i.e. bank statements deemed salary or weekly pay etc?

What evidence is there of the payments?

If the employer hasn't gone through hmrc then she would be reckless to pursue the money back through the courts.

Assume your partner has some form of correspondance for this arrangement

anto135

The payments, as all her wages were, were bank transfers directly from her managers account.  There were never any wage slips given during her employment.

Regarding the payments made during lockdown. She still has the correspondence from her manager from WhatsApp messages in which she told her she would pay her 100 a week whilst she tried to (unsuccessfully) claim furlough for her. There were never any premade agreements that my partner would have to pay back the money should the furlough claim be unsuccessful.

Just to add to this, the previous managers husband has contacted my partners new employer pretending to be a solicitor trying to get information on her employment. Surely that’s a form of harassment? 

thebrexitunicorn

anto135 said:

Apologies to have to bump this thread but it makes more sense than starting something fresh.

Due to the way she was being treated, she left the job.

The employer is now advising that she’d be looking to seek legal recourse in terms of recouping the payments she received during the lockdown period when she paid her £100 a week.

could anyone advise where my partner stands with this? 

I can’t see what legal recourse the employer could have. Why was you partner not paid through the books? Why no payslips? If there’s no apprenticeship contract she’s entitled to minimum wage.  Your partner will also have accrued holidays.   This looks like a can of worms for the employer to pursue.  The fact that no contract was issued does not detract from your partner’s employment rights.