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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46805
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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My daughter, whilst still in her probationary period raised

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My daughter, whilst still in her probationary period raised the issue of only being paid for contracted hours, despite being asked to work longer. Contracted for 48 hours a week she regularly was rota'd to work 60 hours. Her pay therefore fell below the minimum wage and she was told that no time off in lieu would be given.
When raised this as a concern by email and in person she was told she did not meet the demands of the business and her contract terminated. I appreciated that her contract could be terminated at any time, however this is clearly unfair given the under payment of wages. My question is simply can she be compensated for being paid under the minimum wage?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
Hello when was the employment terminated!
Customer: replied 1 year ago.
Today.
She emailed her grievance last week and the response after a few days was to come in for a meeting.
Expert:  Ben Jones replied 1 year ago.
Hello, sorry I was back in tribunal by the time you had replied. You are correct that with less than 2 years’ service her employment could be terminated at any time and for more or less any reason. There are certain exceptions and one may apply here – I will discuss this below. As far as remuneration is concerned, whilst employees are not automatically entitled to overtime pay unless the employer pays that, they must be paid at least the minimum wage when considering the hours they have worked in total and the pay they have received for that period. This is a legal requirement – not something the employer can choose. So if she was paid below the minimum wage he is legally entitled to claim the difference to bring her up to that threshold. In addition, if the reason for dismissal was because she had complained about not getting paid the minimum wage, it could make the dismissal automatically unfair, regardless of how long she has been there for. This is your basic legal position. I have more detailed advice for you in terms of the steps she can now follow to take the matter further, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, there I no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you
Expert:  Ben Jones replied 1 year ago.
Hello, I see you have read my response to your query. Please let me know if this has answered your original question and if you need me to discuss the next steps in more detail? In the meantime please take a second to leave a positive rating by selecting 3, 4 or 5 starts from the top of the page. The question will not close and I can continue with my advice as discussed. Thank you
Customer: replied 1 year ago.
Good morning Ben
Thanks very much for your response.
I've asked my daughter to send me her contract and her letter of dismissal.
She's quite nervous about making an immediate response without finding out a little more. As we see it there are two grievances, one is the issue of unfair dismissal and the other is minimum wage issue, both of which we feel she would have a good case. The latter, certainly would be easy to prove as I am sure it's a simple case of hours worked v hours paid.
Expert:  Ben Jones replied 1 year ago.
Hello, yes that is correct, there are two main issues here as described. She can pursue one or the other or both at the same time. The calculation of the pay is indeed as simple as establishing the hours she worked and the amount she got paid over the period which determines her pay packet (so if she gets paid monthly she must use the hours and pay for that month to calculate this). The dismissal aspect will depend on whether she was underpaid in the first place or at least had a genuine belief that this s what was happening and she complained and as a result was dismissed. In any event I can discuss the next steps with you if you want me to – it would be for your reference and you would decide how far you want to take it. If your original question has been answered I would be grateful if you could please quickly rate my answer by selecting 3, 4 or 5 starts at the top of the page - it only takes a second to do and is an important part of our process. I can still answer follow up questions afterwards if needed. Thank you
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46805
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Employment Law Specialists are ready to help you
Expert:  Ben Jones replied 1 year ago.
Thank you. Should she decide to take this further then she can make a claim for unlawful deduction of wages and also for unfair dismissal (if applicable) in the employment tribunal. She only has 3 months from the date of dismissal to do so. A new feature in the employment tribunal’s claims process is mandatory early conciliation with ACAS. This requires prospective claimants to notify ACAS and provide details of their intended claim and they would then try to negotiate between the claimant and respondent to seek out of court settlement in order to avoid having to take the claim to the tribunal. It is possible for the parties to refuse to engage in these negotiations, or that they are unsuccessful, in which case they would get permission to proceed with making the claim in the tribunal. If negotiations are initiated and settlement is reached, then the claimant would agree not to proceed with the claim in return for the agreed financial settlement. The conciliation procedure and the form to fill in can be found here: https://ec.acas.org.uk/Submission/SingleClaimantPage In terms of the time limits within which a claim must be presented, the early conciliation process places a ‘stop’ on that and the time between notifying ACAS and them issuing permission to proceed with the claim would not count for the purposes of these time limits.

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