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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 47420
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Please can you advise whether I can claim damages if employer

Customer Question

Hi, please can you advise whether I can claim damages if employer only made a partial payment in lieu. There is a pilon clause in contract of one months salary paid instead of notice, but I only received 3 weeks pay. Also, The clause isn't limited to basic salary only. I have started a claim for breach of contract to claim the week outstanding but can I also claim further damages including benefits etc if I would have received had i worked the month after notice.
Thank you for your assistance.
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. Which benefits are you thinking of?
Customer: replied 1 year ago.

Pension, also annual leave, commission I would have earned if I had worked the month. I'm not sure what the pilon includes, as the contract does not make it clear, and if I can claim damages if they didn't make the full pilon payment.

Expert:  Ben Jones replied 1 year ago.
Was the commission you were earning guaranteed?
Customer: replied 1 year ago.

It was paid on sales, no, but I never earned less than 2000 commission per month during the time I was employed

Expert:  Ben Jones replied 1 year ago.
Can you please tell me what the PILON clause says about what you are entitled to?
Customer: replied 1 year ago.

Pilon clause just says one months salary, other clauses of contract refer to the 2 levels of basic salary - each month I was paid either basic salary level depending upon how many deals I made in that month - targets for monthly deals varied in order to qualify for the higher basic salary. My question about pilon clause arises because there is no reference to basic salary in the clause.

Thank you

Expert:  Ben Jones replied 1 year ago.
If your employer is relying on a PILON clause to terminate your employment immediately and pay you the equivalent of your notice period, what you are entitled to would depend on what your contract says, specifically the PILON clause. If the clause states that you would only receive basic salary, usually that would mean jut that, and it would exclude any allowances, bonuses, commission, etc. However, if there is ambiguity as to what basic salary means and there are different levels of basic salary then any such issues could be resolved in your favour.
For example, see advice from this organisation (section on Benefits in Kind):
http://www.remedyforbusiness.com/wp-content/uploads/2012/11/How-to-make-a-payment-in-lieu-of-notice.pdf
“The usual position is to provide that the payment will cover basic pay only and that there will be no payment in respect of non-cash benefits that would usually accrue under the notice period. However, in the absence of a contractual clause regulating this, the default position is that the employee should be compensated for the loss of any benefit under the contract for the duration of the notice that should have been given. …The same principle applies in relation to other benefits such as private medical insurance. In relation to bonuses and commission payments, the position will depend on the wording of the relevant contractual scheme. Some contracts expressly provide that commission and bonuses are not payable during the employee’s notice period, and in such circumstances they will not need to be reflected in a payment in lieu. In general, however, the question is the same as with other benefits: what would the employee have received in pay and benefits if the contract had been correctly performed and notice duly given?”
If the full PILON was not paid the employer could remedy this by paying out what you are due, so it does not mean that the whole clause was void and no longer applicable, however if they fail to remedy it in that way you could claim for the full month had you been allowed to work as normal.
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
Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 1 year ago.
Hi, I've received an offer to settle the payment in lieu outstanding, which represents part of my claim, but not outstanding holiday pay and other elements, however, the offer is included in the defence and is in full and final settlement of the entire claim, even though defendant admits they owe the outstanding pilon. My question is should the defendant have made a partial admission and payment, and could it be penalised in any way for not doing so in the small claims court,also, if the case goes to a hearing, should the defendant pay my £410 court fee even if the court settles part of the claim in my favour.
Thank you for your assistance.
Expert:  Ben Jones replied 1 year ago.
Hello, thanks for getting back to me. Unfortunately your question has expired as you must post any follow up queries within 7 days of the date of the original question. If you need any further help on this subject please post it as a new question on our site - you may start it with 'for Ben Jones' so that I get it and deal with it as fast as I can. Many thanks

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