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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 48206
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I left my employment early, I had 6 days left to work, as my

Resolved Question:

I left my employment early, I had 6 days left to work, as my new employer wanted me to start early. I knew there was a penalty clause in my contract of employment but I expected them to give me written notice of when and how much would be deducted from my Junes wage. They have however witheld all of my Mays wage with no notification whatsoever. This has put me in debt with the bank as there isn't any money to cover my direct debits, I have no money to buy food with. I have rung and written to them but as yet have received no reply. My Junes wage is due 10th July. Can they do this?
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones : Hello, my name is ***** ***** it is my pleasure to assist you with your question today. What was the penalty clause in your contract? Also did the contract mention anything about the employer's ability to withhold your pay?
Customer:

All it says is:- If you leave your employment without working your full notice, the company reserves the right to deduct any payment due by the amount equating to the length of notice not worked.No it doesn't.

Ben Jones :

This potentially amounts to an unlawful deduction from wages, which is made illegal under the Employment Rights Act 1996.


 


Under law, an employer can only make deductions from, or withhold an employee’s wages in the following circumstances:



  • If it is legally allowed (e.g. to deduct tax);

  • If it is to recover an earlier overpayment of wages made by the employer; or

  • If the employee has given their explicit written agreement for the deductions to be made.


 


If none of the above exemptions apply, the deductions will most likely be unlawful. The employer could try and argue that they had the clause ion your contract allowing them to withhold your notice period but they cannot withhold your pay for time already worked, especially if the losses they have incurred by you leaving early do not match what you were due, which is unlikely.


 


In order to try and resolve this, the employer should be contacted in writing, advised that this is being treated as unlawful deduction of wages and ask them to pay back the money within 7 days. Advise them that if they fail to pay the money that is owed, legal proceedings could follow.


 


If the employer does not return the money as requested, the following options are available:



  1. Employment Tribunal - the time limit to claim is only 3 months from the date the deductions were made. To make the claim, form ET1 needs to be completed and submitted - you can find it here: https://www.employmenttribunals.service.gov.uk/employment-tribunals

  2. County Court – this is an alternative way to claim and the advantage is that the time limit is a much longer 6 years and is usually used if you are out of time to claim in the Tribunal. The claim can be made online by going to: www.moneyclaim.gov.uk.


 


Hopefully by warning the employer you are aware of your rights and are not going to hesitate taking further action they will be prompted to reconsider their position and work towards resolving this.


 


Hope this clarifies your position?

Customer:

Thank you. I rang Head office on the 11th June to see why my wage hadn't been paid on the 10th. They told me to ring my manager which I did but she was busy. I was told she would ring me as soon as she was finished. I waited until 20.30hrs ( I worked in a care home) but heard nothing from her. I then wrote her a letter asking for an explanation as to why my Mays wage had been witheld. I said I was aware of the penalty clause but expected it to be taken from my June wage. I asked for a full written explanation of penalties incurred, how much it will be and when it is expected to be paid by. I also said that they have witheld money which belongs to me without my knowledge or consent and this could be classed as theft. I asked for my wage to be paid in by mid-day on Friday 13th June and I would take no further action but it hasn't and I've heard nothing.Shall I write to them again saying that I'm now treating it as unlawful deduction of wages and give them a further seven days to pay it into my account and if they fail to do so, I will be taking legal proceedings against them? Should I go to ACAS?

Ben Jones :

This is not theft so do not use that term as it is not a criminal matter, this is a civil issue and the police certainly would not be interested in it. Instead you should contact them as stated and tell them this is an unlawful deduction of wages and give them the time limit to resolve this. Before you are able to make a claim in the employment tribunal you will have to involve ACAS anyway to try and mediate between you and the employer but if that comes to nothing then you will be allowed to issue your claim for what you are owed.

Ben Jones :

Has this answered your query or is there anything else in relation to this I can help with?

Ben Jones and other Employment Law Specialists are ready to help you