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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 47338
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I applied temporary job with an agency that was

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I applied for a temporary job with an agency that was advertised for £10-12/h. On my actual assignments I was promised £11/h minus 5% for an umbrella accounting company, so I expected about £ 10.5/h gross After calculating my actual pay it is only about
£8.5/h gross. They do cover themselves with tax calculations, but I would not have worked for them, had they advertised the job for £8.5 and think the information is misleading. Even though their calculations are probably legal, this company is scamming their
employees.
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
Hello, my name is***** am a solicitor on this site and it is my pleasure to assist you with your question today. What is your specific query about this situation?
Customer: replied 1 year ago.
I believe the company to be fraudulent and I want my full pay. The query is: is there a way to get my money back. This company unlawfully chopped of 20% of my earnings. As an employee I have a right on my promised pay (minus Income Tax, NI and the agreed 5%). So for a £1000 I pay £50 for accounting work, then about £250 Tax and Insurance, and then they deduct another £200 to pay my own holiday and employer's NI. I want these £200 back. That's the query.
Expert:  Ben Jones replied 1 year ago.
The employer’s NI contributions are a responsibility of the employer, unless you are working as self employed or through an umbrella company in which case you may be classified as the employer and be responsible for these. So you could actually still be required to pay for these depending on the set up. If you are just an agency worker and not self employed or working through an umbrella company you could still be liable for these, see here:
http://www.umbrellacompare.com/guides/contractor/dc709fe458052c2932d92be8e116bac357aaca39.html
Your holiday pay being included in the pay could be unlawful as that is known as ‘rolled up holiday pay’. So if this was not made clear at the beginning you could try and get it back:
http://www.steenandco.co.uk/rolled-up-holiday-pay-_109/
In terms of trying to get that back, whenever a dispute arises over money owed by one party to another, the debtor can be pursued through the civil courts for recovery of the debt. As legal action should always be seen as a last resort, there are certain actions that should be taken initially to try and resolve this matter informally and without having to involve the courts. It is recommended that the process follows these steps:
1. Reminder letter – if no reminders have been sent yet, one should be sent first to allow the debtor to voluntarily pay what is due.
2. Letter before action – if informal reminders have been sent but these have been ignored, the debtor must be sent a formal letter asking them to repay the debt, or at least make arrangements for its repayment, within a specified period of time. A reasonable period to demand a response by would be 10 days. They should be advised that if they fail to do contact you in order to resolve this matter, formal legal proceedings will be commenced to recover the debt. This letter serves as a ‘final warning’ and gives the other side the opportunity to resolve this matter without the need for legal action.
3. If they fail to pay or at least make contact to try and resolve this, formal legal proceedings can be initiated. A claim can be commenced online by going to www.moneyclaim.gov.uk. Once the claim form is completed it will be sent to the debtor and they will have a limited time to defend it. If they are aware legal proceedings have commenced it could also prompt them to reconsider their position and perhaps force them to contact you to try and resolve this.
Whatever correspondence is sent, it is always advisable to keep copies and use recorded delivery so that there is proof of delivery and a paper trail. The court may need to refer to these if it gets that far.
I trust this has answered your query. I would be grateful if you could please take a second to leave a positive rating (selecting 3, 4 or 5 starts at the top of the page). If for any reason you are unhappy with my response or if you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you
Customer: replied 1 year ago.
Thank you for your detailed reply.
You wrote "So if this was not made clear at the beginning you could try and get it back".Does small print count as "made clear"?
They did not mention it in interviews or emails."Made clear" for me would mean telling me: "We don't pay you any holiday and we don't pay your Employer's NI".They did mention it in the small print in an email attachment they sent as a starter guide:
"6. Holiday Pay Advance - Danbro does not hold any monies from your contracted rate, therefore this shows the portion of your salary that is for holiday pay."
"9. Holiday Pay - Holiday pay does form part of your contracted rate of pay and this deduction will show you the proportion of your contracted rate of pay that is accounting for your holiday pay. At Danbro we do not hold your holiday pay therefore while this shows as a deduction in this area, you will notice an addition on the PAYE part of your payslip for the same value. We will not hold back monies to cover holiday periods, therefore please make sure you make necessary provisions to cover holiday periods."
However they did not tell me that they won't pay me any holiday. They told me, that I get paid £11p/h and that I have to pay 5% for accounting services. So the information they gave me is still misleading, even though they mentioned it in the small print.In an illustration they sent me they state that I might get "As Percentage 78%" of my gross income which is misleading since the actual percentage is far lower.Further they are certainly aware that workers from traditional employment have never dealt with employers NI and rolled up holiday pay. They did not tell us that we had to pay our own holiday pay and employers NI contribution, all they said is that the 5% will take care of all the paper work, which means they where deliberately withholding information, because nobody would work for them knowing that deductions will be up to 40%. The small print mentions the deductions but the illustration is still misleading and they did not mention it at all in the interviews and emails.
Expert:  Ben Jones replied 1 year ago.
Small print can be sufficient notice. As long as the employer had provided you with the documentation which contained the information then you are expected to read all of it and be satisfied with its contents as you would be bound by it. There is no requirement for it to be specifically mentioned in person – otherwise you could argue that they should have mentioned every single term to you verbally or drawn your attention to it – that is impossible in employment situations because there are often many terms which would apply so you would instead be issued with a document or contract containing the relevant terms and it would be for you to familiarise yourself with them. So an argument that this was misleading would not be that strong should you decide to go to court over this as they can show that they had provided you with the necessary details and if there was any uncertainty then you should have queries it before accepting the job. I would like to tell you it would be a clear case of you being right but unfortunately in the circumstances I can’t so I do have to provide an honest opinion
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