ET case help with Schedule of Loss: Not paid wages, no contract, "dismissed" for asking for pay.

Marcon

SChitmehard said:

Marcon said:

SChitmehard said:

Marcon said:

SChitmehard said:

Marcon said:

SChitmehard said:

Hi all,

A kid in my street is going to ET and I have tried to help him with his case as a litigant in person. Kid is 18 years old and is his first job.

Long story short:

Kid applies for zero hours job, gets it. He is not given a contract to take away, but they ask him to sign some documents whilst he is there but he is not sure what he signed.

Company organised work using whatsapp group for shifts. He does around 10 shifts over 2 months.

He was meant to be paid after 1 month but was not paid, kept on doing work as employer promised to pay in 2 weeks later. Not paid after 2 weeks. He asks other employees if they have been paid and tells them that he has not been paid. Employer removes him from whatapps group so now he can't get any more work, is he "dismissed" at this point? Appears that employer removed him for contacting other employees and telling them that employer has not paid him/asking if they have been paid, but the effect is that he cannot get anymore work now.

He phones employer and they refuse to pay him. and tell him they will not be paying him.

The employer has done this to a few other of his colleagues too but those colleagues have not lodged an ET case as far as I know. They are willing to be witnesses.

He has logged an ET case for automatic unfair dismissal as he was dismissed when he asked for payment.

On his schedule of loss he is claiming:

loss of wages
holiday pay
lack of contract
interview expenses for next job
compensation for being unemployed between jobs
interest

1) Is he dismissed at the point he is blocked from whatsapp? Employer is arguing not dismissed as they never told him he is dismissed so they claim he is still employed or in the alternative he is dismissed due to conduct (contacting other employees). He had a zero hours job he tells me. He does not have a contract so I can't check. 

2) Is there anything else he can claim in his schedule of loss eg ACAS uplift OR notice pay? - he has not been paid for 6 months now and employer has ignored ACAS contact.

3) Is it possible to add other people as Claimants (that didn't lodge a case) as joint Claimants? If not, how can I help those people recover their money as may be too late to lodge ET case on their behalf. This happened 6 months ago so time limit may be up or can it be extended?

Thanks.

Are you sure you're the best person to help, given your own history of employment issues eg https://forums.moneysavingexpert.com/discussion/6335001/sham-grievance-what-info-documents-to-request-for-appeal/p1

Setting a teenager off on what appears to be a massively overblown claim might be a worse start to the young man's working life than possibly treating it as a learning experience and moving on. Keeping a copy of anything he signs would be an excellent takeaway from all this...

Thanks for checking my history. A  few of the people in the street know about my case and one of the kids father asked for help.

The employer has refused point blank to pay him or engage with ACAS so will have to take it as far as it goes to get kids pay (it's only around £700 but he wants as much as he can get as he has student fees to pay!), and from speaking to him it appears the employer takes on young people/new arrivals to Britain, employs them for a few months, strings them along and never pays them. These people are young students or new arrivals and so do not know the law and don't have the money to take legal action and give up which is what this employer seems to rely on. I am just trying to help with the little knowledge I have to stop the employer exploiting these people since I work in social worker and helping people is the job.

I have drafted the Schedule of Loss for him, just wanting some advice if anyone can answer the above questions. And if there is any way to get money for the people that did not lodge the claim please let me know. Thanks.

What was his status: worker (which seems likely, based on what you've said) or employee? If the former, most of your reasoning (however well intentioned) is simply ill-founded. He's entitled to payment for the work done +  holiday pay but you are raising a lot of false hopes if you've not even made this simple check.

Employee on zero hours, from my checks:

Employer offered work, he had to accept a certain amount,
Employer told him when & where to work, he couldn't get someone else to do it.
Tax/NI paid by employer - although he has not received pay for his work.
Employer accepts contract of employment exists - kid says they never gave him a paper/electronic copy, and he is not sure he signed a "contract", although he did sign something when he went for interview and they offer him the job there and then. Employer says they gave him a contract. <- this is the point other employees will help with as witnesses to verify if they had been given contracts. I suspect others will not have been given contracts!

Seems like an easy enough case, but the employer ignored all contact from the kid/ACAS and probably hoped he'd give up. Now employer has hired a solicitor so I need to get some advice from you guys/read some books. Obviously the kid can't afford legal advice as the claim is £700 so legal costs would outweigh recovery. If I can get them on the lack of contract if may be worth £1-2k for him + his pay AND teach the employer a lesson.

You still don't seem to have  established whether he is a worker or an employee, or grasped that the difference is crucial. Nor has it been established that there has actually been a dismissal.

Gratifying as it is to have people seeking your advice, they aren't likely to be impressed by the outcome unless you are willing to accept you are out of your depth. You'd do far better - and so would this young man - if you suggested he talked to Citizens Advice. Their advice is free, well informed and they aren't sidetracked by notions about 'teaching the employer a lesson' - something which seemed to be a recurrent theme in some of your previous posts. It didn't serve you well then and won't serve him well now. 

One route which is worth considering is a complaint that he wasn't paid the minimum wage, which if he's worked for them and hasn't been paid at all sounds like a claim with a good prospect of success. See https://www.acas.org.uk/national-minimum-wage-entitlement/if-an-employer-does-not-pay-minimum-wage

In their ET3 they do not dispute that he is an employee.

Dismissal I am not sure, I am arguing that because they cut him off the whatsapp where work was posted means that he is in terms dismissed as he can't get any work now. Employer says in ET3 the he is not dismissed and if court says he is then they will argue that it's on grounds of conduct. I will say that to threaten am employee must mean he IS dismissed.

I told him to go to lawworks/uni law departments/CAB that do law clinics but he only went one time to CAB and ended up with a 2 page legal advice that he didn't know what to do with. I would prefer not to be involved as as you will know it's a lot of work (even more if you don't know what you are doing and stressful, but he can't afford legal, the Uni law depts are shut, and he doesn't seem to want to go to CAB. With the business opening the same business in a similar name and the risk they may close down, plus it's £700, plus the stress for me, I am wanting him to settle it for the £700 and be done with it. He wants to continue and wants to get as much as possible even if he has to go to ET!

Your attitude does seem to have changed dramatically since your first post 24 hours ago. Maybe the time has come to give him a reality check. I don't know who raised his hopes, but he's likely to be on a hiding to nothing, especially as there is apparently a real threat that the business will simply go into liquidation long before any ET hearing is even on the horizon. He may not 'seem to want to go to CAB' but that's his best bet, so I suggest you firmly point him in that direction and gently withdraw.

You also need to ensure he understands that he needs to be able to show that he is making serious and sustained attempts to find another job, if he's going to try and claim (albeit without much chance of success) loss of earnings because he's been unemployed. He has a duty to mitigate his losses if he's claiming breach of contract.

SChitmehard said:

Thanks for the NMW advice, I may include that in there. Also there people that did not get their claim in time may be able to use the NMW as a way to get they wages!!! Really useful advice  that makes wading through 90% of the chaff on here worth it.   

You'd get much more useful and targeted responses if you supplied all the relevant information in the first place. Drip feeding bits makes it impossible to give comprehensive and constructive responses; it's like hitting a moving target...

Undervalued

Marcon said:

You'd get much more useful and targeted responses if you supplied all the relevant information in the first place. Drip feeding bits makes it impossible to give comprehensive and constructive responses; it's like hitting a moving target...

Quite!

OP - Honestly, I understand you want to help this young person but I really would concentrate on recovering the unpaid wages and forget these other tenuous / non existent claims. In all probability you are out of time for an ET in any case. The missing wages and any holiday pay can be claimed in the small claims court. Nothing else can.

Even assuming you win that (or part or all of an ET if the case is accepted) you still have the very real problem of enforcing the judgement. The court / tribunal doesn't do that for you so it could well be an uphill or unwinnable battle.

It is for good reason there is a saying "never sue those that can't or won't pay"!

If the claimed threats of violence are a serious worry then that is a factor too. Yes it is wrong / appalling and criminal and shouldn't be allowed to happen. However, in the real world.......

SChitmehard

Marcon said:

SChitmehard said:

Marcon said:

SChitmehard said:

Marcon said:

SChitmehard said:

Marcon said:

SChitmehard said:

Hi all,

A kid in my street is going to ET and I have tried to help him with his case as a litigant in person. Kid is 18 years old and is his first job.

Long story short:

Kid applies for zero hours job, gets it. He is not given a contract to take away, but they ask him to sign some documents whilst he is there but he is not sure what he signed.

Company organised work using whatsapp group for shifts. He does around 10 shifts over 2 months.

He was meant to be paid after 1 month but was not paid, kept on doing work as employer promised to pay in 2 weeks later. Not paid after 2 weeks. He asks other employees if they have been paid and tells them that he has not been paid. Employer removes him from whatapps group so now he can't get any more work, is he "dismissed" at this point? Appears that employer removed him for contacting other employees and telling them that employer has not paid him/asking if they have been paid, but the effect is that he cannot get anymore work now.

He phones employer and they refuse to pay him. and tell him they will not be paying him.

The employer has done this to a few other of his colleagues too but those colleagues have not lodged an ET case as far as I know. They are willing to be witnesses.

He has logged an ET case for automatic unfair dismissal as he was dismissed when he asked for payment.

On his schedule of loss he is claiming:

loss of wages
holiday pay
lack of contract
interview expenses for next job
compensation for being unemployed between jobs
interest

1) Is he dismissed at the point he is blocked from whatsapp? Employer is arguing not dismissed as they never told him he is dismissed so they claim he is still employed or in the alternative he is dismissed due to conduct (contacting other employees). He had a zero hours job he tells me. He does not have a contract so I can't check. 

2) Is there anything else he can claim in his schedule of loss eg ACAS uplift OR notice pay? - he has not been paid for 6 months now and employer has ignored ACAS contact.

3) Is it possible to add other people as Claimants (that didn't lodge a case) as joint Claimants? If not, how can I help those people recover their money as may be too late to lodge ET case on their behalf. This happened 6 months ago so time limit may be up or can it be extended?

Thanks.

Are you sure you're the best person to help, given your own history of employment issues eg https://forums.moneysavingexpert.com/discussion/6335001/sham-grievance-what-info-documents-to-request-for-appeal/p1

Setting a teenager off on what appears to be a massively overblown claim might be a worse start to the young man's working life than possibly treating it as a learning experience and moving on. Keeping a copy of anything he signs would be an excellent takeaway from all this...

Thanks for checking my history. A  few of the people in the street know about my case and one of the kids father asked for help.

The employer has refused point blank to pay him or engage with ACAS so will have to take it as far as it goes to get kids pay (it's only around £700 but he wants as much as he can get as he has student fees to pay!), and from speaking to him it appears the employer takes on young people/new arrivals to Britain, employs them for a few months, strings them along and never pays them. These people are young students or new arrivals and so do not know the law and don't have the money to take legal action and give up which is what this employer seems to rely on. I am just trying to help with the little knowledge I have to stop the employer exploiting these people since I work in social worker and helping people is the job.

I have drafted the Schedule of Loss for him, just wanting some advice if anyone can answer the above questions. And if there is any way to get money for the people that did not lodge the claim please let me know. Thanks.

What was his status: worker (which seems likely, based on what you've said) or employee? If the former, most of your reasoning (however well intentioned) is simply ill-founded. He's entitled to payment for the work done +  holiday pay but you are raising a lot of false hopes if you've not even made this simple check.

Employee on zero hours, from my checks:

Employer offered work, he had to accept a certain amount,
Employer told him when & where to work, he couldn't get someone else to do it.
Tax/NI paid by employer - although he has not received pay for his work.
Employer accepts contract of employment exists - kid says they never gave him a paper/electronic copy, and he is not sure he signed a "contract", although he did sign something when he went for interview and they offer him the job there and then. Employer says they gave him a contract. <- this is the point other employees will help with as witnesses to verify if they had been given contracts. I suspect others will not have been given contracts!

Seems like an easy enough case, but the employer ignored all contact from the kid/ACAS and probably hoped he'd give up. Now employer has hired a solicitor so I need to get some advice from you guys/read some books. Obviously the kid can't afford legal advice as the claim is £700 so legal costs would outweigh recovery. If I can get them on the lack of contract if may be worth £1-2k for him + his pay AND teach the employer a lesson.

You still don't seem to have  established whether he is a worker or an employee, or grasped that the difference is crucial. Nor has it been established that there has actually been a dismissal.

Gratifying as it is to have people seeking your advice, they aren't likely to be impressed by the outcome unless you are willing to accept you are out of your depth. You'd do far better - and so would this young man - if you suggested he talked to Citizens Advice. Their advice is free, well informed and they aren't sidetracked by notions about 'teaching the employer a lesson' - something which seemed to be a recurrent theme in some of your previous posts. It didn't serve you well then and won't serve him well now. 

One route which is worth considering is a complaint that he wasn't paid the minimum wage, which if he's worked for them and hasn't been paid at all sounds like a claim with a good prospect of success. See https://www.acas.org.uk/national-minimum-wage-entitlement/if-an-employer-does-not-pay-minimum-wage

In their ET3 they do not dispute that he is an employee.

Dismissal I am not sure, I am arguing that because they cut him off the whatsapp where work was posted means that he is in terms dismissed as he can't get any work now. Employer says in ET3 the he is not dismissed and if court says he is then they will argue that it's on grounds of conduct. I will say that to threaten am employee must mean he IS dismissed.

I told him to go to lawworks/uni law departments/CAB that do law clinics but he only went one time to CAB and ended up with a 2 page legal advice that he didn't know what to do with. I would prefer not to be involved as as you will know it's a lot of work (even more if you don't know what you are doing and stressful, but he can't afford legal, the Uni law depts are shut, and he doesn't seem to want to go to CAB. With the business opening the same business in a similar name and the risk they may close down, plus it's £700, plus the stress for me, I am wanting him to settle it for the £700 and be done with it. He wants to continue and wants to get as much as possible even if he has to go to ET!

Your attitude does seem to have changed dramatically since your first post 24 hours ago. Maybe the time has come to give him a reality check. I don't know who raised his hopes, but he's likely to be on a hiding to nothing, especially as there is apparently a real threat that the business will simply go into liquidation long before any ET hearing is even on the horizon. He may not 'seem to want to go to CAB' but that's his best bet, so I suggest you firmly point him in that direction and gently withdraw.

You also need to ensure he understands that he needs to be able to show that he is making serious and sustained attempts to find another job, if he's going to try and claim (albeit without much chance of success) loss of earnings because he's been unemployed. He has a duty to mitigate his losses if he's claiming breach of contract.

SChitmehard said:

Thanks for the NMW advice, I may include that in there. Also there people that did not get their claim in time may be able to use the NMW as a way to get they wages!!! Really useful advice  that makes wading through 90% of the chaff on here worth it.   

You'd get much more useful and targeted responses if you supplied all the relevant information in the first place. Drip feeding bits makes it impossible to give comprehensive and constructive responses; it's like hitting a moving target...

Can I write to the ET judge for any kind of *order* to:

pay his wages which they admitted they owed and promised to pay at the preliminary hearing but have not done so (the preliminary hearing was almost 2 months ago)? 

stop them closing down the company to avoid payment?

SChitmehard

Undervalued said:

Marcon said:

You'd get much more useful and targeted responses if you supplied all the relevant information in the first place. Drip feeding bits makes it impossible to give comprehensive and constructive responses; it's like hitting a moving target...

Quite!

OP - Honestly, I understand you want to help this young person but I really would concentrate on recovering the unpaid wages and forget these other tenuous / non existent claims. In all probability you are out of time for an ET in any case. The missing wages and any holiday pay can be claimed in the small claims court. Nothing else can.

Even assuming you win that (or part or all of an ET if the case is accepted) you still have the very real problem of enforcing the judgement. The court / tribunal doesn't do that for you so it could well be an uphill or unwinnable battle.

It is for good reason there is a saying "never sue those that can't or won't pay"!

If the claimed threats of violence are a serious worry then that is a factor too. Yes it is wrong / appalling and criminal and shouldn't be allowed to happen. However, in the real world.......

The ET was in time. 

Why go through the trouble of small claims when there is an active case in ET? He would have the same issue if they failed to pay up after CCJ, it would take the same enforcement action that would be needed if they failed to pay after ET, except CCJ would increase his costs. Seems backwards advice to me.

JCS1

Small claims is likely to get your judgment quicker than an ET (especially given the backlog there is at the moment).

And surely the most important bit of all this is getting the monies owed quickly?

SChitmehard

JCS1 said:

Small claims is likely to get your judgment quicker than an ET (especially given the backlog there is at the moment).

And surely the most important bit of all this is getting the monies owed quickly?

My hearing in ET is in September. I doubt CCJ would be quicker now. But even after CCJ they can still refuse to pay and then the process of enforcement needs to be done. I can do the same enforcement after ET decision.

Problem is what to do with the second company they started. They will probably move all business to second company and empty the bank accounts of the first company written in the ET claim and try to get away with NOT PAYING even his wages.

Can't believe this, little kid will be gutted. First job and this is what he has to deal with.

Undervalued

SChitmehard said:

JCS1 said:

Small claims is likely to get your judgment quicker than an ET (especially given the backlog there is at the moment).

And surely the most important bit of all this is getting the monies owed quickly?

My hearing in ET is in September. I doubt CCJ would be quicker now. But even after CCJ they can still refuse to pay and then the process of enforcement needs to be done. I can do the same enforcement after ET decision.

Problem is what to do with the second company they started. They will probably move all business to second company and empty the bank accounts of the first company written in the ET claim and try to get away with NOT PAYING even his wages.

Can't believe this, little kid will be gutted. First job and this is what he has to deal with.

"Little kid" - Honestly? He is an adult!

2nd Paragraph - Yes, sadly that is a real possibility with the type of company you are describing. Acting sooner and concentrating on the one clear cut issue (failure to pay wages) might have reduced the chance but who knows. 

Assuming he wins and has to go down the enforcement route then it is a gamble. There are fees to be paid at each step which he will only get back if the enforcement successfully recovers enough money. If the company is liquidated then at best he may only get a small percentage and could easily be out of pocket.

As far as I know an ET does not have the power to make orders freezing assets etc in case this were to happen.