Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today.
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
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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.
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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?
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?
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.
Hello, do you need any further assistance or are you happy with the above response? Look forward to hearing from you.
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
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
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