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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 48202
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Started employment 22 February and resignation submitted on

Customer Question

Started employment 22 February and resignation submitted on 24 June.Contract states, ‘basic salary …, payment by equal monthly instalments on or before the last working day of each calendar month’. Although right from first week after verbal discussions / agreement wages had been paid weekly, I can prove this through bank statements.On the previous two weeks leading to my resignation we had engaged in verbal discussions in relation to the overwhelming overtime I’d incurred as well as outstanding expenses (Van hiring £398,23 and Uber transport expenses £204,50; Total £602.73) and agreed weekly wages. Relationship quickly deteriorated as I didn’t get proper response to any of my requests and after telephone discussions where I was bullied, threatened and verbally abused; this left me with no option but to resign via email on 24 June.On resignation email I asked them what notice period was as I assumed one week, after my short period of work, would be enough. I also noted ‘As discussed I'll forward expenses I incurred from my pocket which must be reimbursed as a matter of urgency and my weekly wages. I can commit to few days handover period provided all of the above is met. Do let me know how we proceed on this’On the same date with immediate effect employer blocked my access to company email account, before he’d tried to remove email resignation by doing this. Before that I managed to forward it to my personal private email and from this forwarded back to him.After my resignation I resumed work on Monday 26 June and found out that employer had assigned new personnel on site altogether. As said before employer refused to answer my requests.On 27 June I emailed stating ’Clearly exchange emails (company) are working well, I’ve got no access to information as company email allocated to myself has been removed so I cant ’t carry out work. Since I work remotely, I can only wait for instructions. However I still haven’t got a written reply to my resignation email and all the conversations taken place.Today you said you still wanted my help, however you’re uncertain if you’ll have money to pay my wages. As clearly discussed in previous days I’ve been working overtime, which you acknowledged, and agreed that I should send across accrued overtime incurred in doing work for your company. I offered my help several times in the form of handover period but I haven’t heard anything from you.
At the start of my appointment we've had agreed that you’ll pay on weekly basis which is what last couple of weeks hasn’t happened.Today you offered to pay £500 which I understand is to cover expenses I’d paid from my pocket as per expenses submitted to you last week. You must be aware that since you didn’t fulfil my wages you’re incurring in breach of contract which leaves me free of obligations’I got ACAS certificate where once again employer refused to address their obligations. My next step is to submit tribunal claim for Unpaid Wages for the above explained. Or is this Breach of contract?I do also intend to submit Discrimination claim fro treatment so far as the only person they refused to pay is myself. In my justification I will argue that I was badly treated due to my nationality.I’ve read ET T435 fees guidance (claims hearing, types of claims, etc). I don’t need advice on this matter.Let me have your advice on the above.Thanks
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today.

Customer: replied 1 year ago.
Ok, thanks
Expert:  Ben Jones replied 1 year ago.

No problem at all. Based on what you have described, please can you tell me what the ideal outcome would be for you in this situation so that I can advise you of your options? Thank you

Customer: replied 1 year ago.
Please dismiss my other question placed, as my question is described above
Customer: replied 1 year ago.
Get my wages, payment 'in lieu' notice pay, holidays entitlement, expenses. I need to get my payments as per law. The discrimination is a serious matter where I expect to get my dignity restored.
Expert:  Ben Jones replied 1 year ago.

OK, thank you for your response. I will review the relevant information and laws and will get back to you at the earliest opportunity. There is no need to wait here as you will receive an email when I have responded. Also, please do not responded to this message as it will just push your question to the back of the queue and you may experience unnecessary delays. Thank you.

Expert:  Ben Jones replied 1 year ago.

Many thanks for your patience. If you did not have a contractual notice period then on resignation you would only be expected to give a week’ notice. So if you had given that and the employer did not allow you to work or just did not pay you then that is the first thing you can pursue them for.

Overtime - there is no legal right to be paid for overtime, unless you are contractually entitled to overtime pay. So it will depend on what the contract said about overtime – if no overtime clause existed which entitled you to overtime pay you do not have the right to be paid for overtime unfortunately. However, then looking at the hours you did, including overtime, and the pay you received for that time, it must not fall below the minimum wage.

Expenses – these are specifically excluded from wages so to pursue these you must make a claim in the small claim court.

Holidays will be claimable in tribunal so it will depend on how many holidays you had accrued by the end of your employment and how many you had not taken.

Discrimination – you will have to prove that you were in fact treated detrimentally due to your nationality. Just because you were the only one not paid and you were of a different nationality does not automatically mean that nationality had anything to do with their actions. So you must be able to show proof that nationality had been a relevant factor in their decisions.

I hope this has answered your query. I would be grateful if you could please take a second to leave a positive rating (3, 4 or 5 stars) as that is an important part of our process and recognises the time I have spent assisting you. 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

Expert:  Ben Jones replied 1 year ago.

Hello, I see you have read my response to your query. If this has answered your question please take a second to leave a positive rating by selecting 3, 4 or 5 stars from the top of the page. I spend a lot of time and effort answering individual queries and I am not credited for my time until you leave your rating. If you still need further help please get back to me on here and I will assist as best as I can. Many thanks.

Customer: replied 1 year ago.
I appreciate your rate request, but if I rate now.... wouldn't be good as my question is not answered. I need some clarifications and then I'll be able to rate your service. Thanks
Customer: replied 1 year ago.
Overtime - Contract states: 2. Normal hours of work. states 40hrs per week 5 days Monday to Fridat, 9am to 5:30pm. You will also be required to work a certain amount of overtime when the needs of the business require it. However Overtime accrued to incredible amount of hours including weekends, and long hours particularly in last few weeks. Hence the arguing and resignation notice. You state that 'it must not fall bellow the minimum wage', I haven’t been paid a single penny for this, let alone minimum wage. Contract says ‘certain amount’, however it went to quite a large amount of hours. How would this stack up, in other words overtime will go free, even if I worked 80hrs a week?. What can I claim then?. Contract gross salary is for £40k. Please clarify this point.Notice period - 9.Notice of termination of permanent employment 9.1 We shall have the right to terminate your employment immediately without notice or (in our sole discretion) payment in liu of notice … 9.2 Subject to your probationary period the period of notice that we shall give to terminate your employment is: 9.2.1 One month where you have completed the first month of your employment…
As explained I’d assumed that by employment law, since weekly payment stopped, I legally shouldn’t go back to work. On this one my employer stopped all form of payment (either weekly/monthly) and eventually after 31st June had passed (just few days after my resignation notice) then legally I shouldn’t keep the 1 month notice, should I?Therefore I understand employer incurred in ‘Breach of contract’ as well as ‘unpaid wages’. My question is how should I proceed in my ET claim which is due ASAP.Need urgent clarifications to the above please.Expenses - ok
Holidays - ok
Discrimination - ok (as I googled about this type of claims, seems more complex and time is not in my favour)
Thanks
Expert:  Ben Jones replied 1 year ago.

Overtime – the minimum wage is not in relation to the overtime hours alone, but ALL the hours you have worked. So for example you work 40h normal hours and 40h overtime a week, a total of 80h and your pay for that week is £600. Dividing the ay by the total hours gives you an hourly rate of £7.50 which is above the minimum wage and is legal. Even though you have not been paid extra for the overtime hours, it is not illegal because you are not contractually entitled to overtime pay and also when considering your average pay for the hours worked in total it does not fall below the minimum wage

Notice period – these clauses are to do with the employer giving you notice to end your employment, not you giving them notice to resign. So unless there was anything which said what notice period you must give them, your notice period is a week and you can only expect a week’s pay for the notice period.

Does this clarify?

Customer: replied 1 year ago.
Overtime - ok, your example of 40hrs + 40hrs and figures add up. Fine. How about Working Time Regulations which determine the maximum weekly working time, a limit of an average 48 hours a week on the hours a worker can be required to work, though individuals may choose to work longer by "opting out”. Which I didn’t. How 80 hrs a week still legal? … Wouldn’t this also extend to H&S breaches. I quite understand your point of 80hrs and minimum wages legality, but I have the impression that this contradicts other legal prerogatives i.e.: Working Time Regulations, H&S.Sorry I don’t intend to argue with you, I came here for sound advice, please clarify this point including all elements under UK legislation.
Notice period -
Sorry, I missed to include: 9.3 You may terminate your employment on giving us one month notice. 9.5 We may terminate your employment at any time and wth immediate effect by paying a sum in lieu of notice equal to your salary (as at the date of termination) which you would have been entitled to receive between the date of termination and the earliest date your employment could otherwise lawfully have been terminated…You didn’t clarify my last point:As explained I’d assumed that by employment law, since weekly payment stopped, I legally shouldn’t go back to work. On this one my employer stopped all form of payment (either weekly/monthly) and eventually after 31st June had passed (just few days after my resignation notice) then legally I shouldn’t keep the 1 month notice, should I?. Therefore I understand employer incurred in ‘Breach of contract’ as well as ‘unpaid wages’. My question is how should I proceed with my ET claim which is due ASAP.thanks
Expert:  Ben Jones replied 1 year ago.

the average of 48h a week is calculated iver a rolling 17 week reference period. So you have to look at all the hours over the past 17 weeks and calculate the average over that period and only if that average is more than 48h will it be a breach of law. But it still does not entitle you to payment for the overtime

ok so you are entitled to a month's notice and assuming you were ready and willing to work that period your employer should have paid you for that.

I did not quite understand the last point so please clarify?

Customer: replied 1 year ago.
overtime - I worked 18 weeks in total, after running my numbers the average is more than 48h. Which is a breach of law clearly. What should I say in my claim?, is the Breach of contract again?notice period - okI’d explained that by contract I was supposed to be paid monthly (end of each month), but right away from first week we agreed to weekly payments which had happened until we started to argue about overtime, working conditions, expenses, etc.Employer and stopped weekly payments, as I had resigned 24 June and had explained that I was willing to carry on until notice runs out. At the end of month (30 june) didn’t get monthly payment. So in effect employer incurred in Breach of contract. How about weekly payments, wouldn’t this supersede (effective treatment) monthly payment which then bring breach of contract (unpaid wages) after first week of June?, although I remained and granted enough time for them to rectify their failures, as seen they didn’t bother to pay wages (weekly/monthly). The same with notice period and so on.how should I proceed with ET claim?, Is this unpaid wages and breach of contract claim?.What is cristal clear is that I’m owed money, holiday entitlement and notice in lieu payment.How should I proceed?
Expert:  Ben Jones replied 1 year ago.

Whilst making you work more than 48h a week is against the Working time regulations, it does not mean you can just make a claim against them or get any compensation. It would have allowed you to complain, etc but you cannot make a claim for that now, so you should not concentrate too much on that

Ok so for the stopping of payments, whilst it may be a breach of contract it does not entitle you to any extra payment – you can still only pursue them for the money they owe you, which is the notice period. So your claim would only be for the notice pay (wages) and any holiday pay. The expenses need to be pursued via the small claims court.

Does this clarify?

Expert:  Ben Jones replied 1 year ago.

Hello, do you need any further assistance or are you happy with the above response? Look forward to hearing from you.

Expert:  Ben Jones replied 1 year ago.

Hello can you please let me know if you have any further questions - I have spent quite a long time answering your queries already and unfortunately I am not credited unless you leave your rating so please do so when you have a second

Customer: replied 1 year ago.
how about detriment for enforcing minimum wage?
Expert:  Ben Jones replied 1 year ago.

I can answer all folow up questions after you leave your rating, please remember that your question will not close and we can contonue our conversation thanks

Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 1 year ago.
I don't think it's any good rate you before job is completed. Doesn't make sense at all, await answer to my last question.
Expert:  Ben Jones replied 1 year ago.

often customers never rate and I end up giving advice for nothing, so I have to make a decision either to continue helping or leave the question. But thank you for rating. There is no claim for detriment for not getting the minimum wage - if you were not paid the minimum wage you can make a claim for the difference you should have been paid and report the employer to HMRC and they can fine them if necessary