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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 44882
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I am a freelance psychiatrist. I worked through a Limited

Customer Question

I am a freelance psychiatrist. I worked through a Limited Company. i have now reached retirement age. So, to take advantage of the NI contribution , I wound up the company and started working on PAYE.

Recently, I agreed on an hourly salary on a fixed salary for a specified period of time and finished the assignment. I then claimed my statutory annual leave entitlement. But the Agency refused to pay and they argue that it was included in my salary. However, the Agency did not tell me this before I started and their "confirmation for Assignment" clearly states that "salary £43.50 via PAYE". I wonder whether their statement means, or implied in the statement, that annual leave pay is included in the salary. Please advise me how i can recover the pay for the annual leave.
Submitted: 3 years ago.
Category: Law
Expert:  Ben Jones replied 3 years ago.
Hello, my name is XXXXX XXXXX it is my pleasure to be able to assist with your question today. Please let me know if the written agreement has any mention of holidays?
Customer: replied 3 years ago.

no.


 


It says salary via PAYE

Expert:  Ben Jones replied 3 years ago.
Do you still work for them?
Customer: replied 3 years ago.


No


 


I worked for the Agency from September to December 2012.

Expert:  Ben Jones replied 3 years ago.
When was your last pay due?
Customer: replied 3 years ago.

My last salary was paid on 28 December 2012

Customer: replied 3 years ago.


28 Dec 2012.


 


I am still waiting for your response

Expert:  Ben Jones replied 3 years ago.
It appears that what your employer is trying to argue is that you were paid 'rolled up' holiday pay, which means holiday pay already included in your normal pay. This is a long-existing issue in employment law and has been the subject of several court cases. Some have argued that this practice is unlawful, however there is still no clear answer and it is very much a grey area as to whether it is legal or not.

Irrespective of this, what is important is that the employer must have made it clear that your holiday pay was included in your basic pay. They cannot completely fail to mention this and then try to rely on it retrospectively. Had you been informed via a transparent agreement that your holiday pay was to be included in your normal pay then they could have potentially argued this was legal but to fail to mention this and then apply it will be unreasonable.

As such you are able to pursue them for any unpaid holidays that you had accrued during your time there. You can go ahead and make the claim via the employment tribunal by using the following form:

www.justice.gov.uk/global/forms/hmcts/tribunals/employment/index.htm

However, please note that the time limit for claiming is only 3 months from the date the holiday pay became due, which would be from the date of your last pay. As such ther claim needs to be submitted no later than 27 March 2013.

Please take a second to leave a positive rating as that is a very important part of our process. Your question will not close and I can continue providing further advice if necessary. Thank you
Customer: replied 3 years ago.


Do i need a lawyer to do it.

Expert:  Ben Jones replied 3 years ago.
No you do not
Customer: replied 3 years ago.

What exactly do I have to do?


Fill in the form and submit online?

Expert:  Ben Jones replied 3 years ago.
yes that is correct - it is all done online

As your original question has been answered I would be grateful if you could please quickly rate my answer - it only takes a second to do. I can then continue providing further advice and answer follow up questions if needed. Thank you.
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 44882
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Law Specialists are ready to help you
Customer: replied 3 years ago.

I am waiting for the response for the follow up question

Expert:  Ben Jones replied 3 years ago.
Hi I have not seen a follow up question, the last post from you was whether you fill in the form online which was answered. Did you have a further question?
Customer: replied 3 years ago.

so do you think that I can win the case if I file a complaint in the Employment tribunal. You suggested that I can pursue the matter in the tribunal.


 


The agency craftily typed this clause away from the statement of salary.


Can I argue that it is cheating?


 


I was working through a Limited Company before and I was paid gross amount as per invoice.They should have alerted me about the change clearly.


finally, do you advise me to go to the tribunal?

Expert:  Ben Jones replied 3 years ago.
I do not think you have a strong case to argue that you were misled because as mentioned in my earlier advice this was just a one page agreement and you cannot argue that this was in the small print buried amongst numerous other clauses. You may try and challenge that the fact this was paid as rolled up pay may be illegal but this is a very technical issue and you will need the help of expert lawyers to go down that route
Customer: replied 3 years ago.

In short, you are advising not to file in the Employment Tribunal as I am unlikely to succeed.


 


But if I challenge, "the fact it was paid as rolled up pay may be illegal", I may win the argument or the case itself. However, it it is a very technical issue and I will need the help of expert lawyers".


 


Do I file the case in Employment tribunal? Will you be able to do it for me? Or recommend somebody to do it for me, preferably on a


no- win -no fee basis.

Expert:  Ben Jones replied 3 years ago.
Unfortunately there are certain limitations to our service and I am bound by these terms:
- we cannot advise you whether you should or should not make a claim as the final decision rests with you, we can only advise you of your position and what the law is - whether you pursue this further is a decision you have to take
- we cannot take on clients through this site, all we can do is provide online advice as we have done so far with your situation. You can however make the claim to the tribunakl yourself and do not need a lawyer to do so
- we cannot recommend specific lawyers for you but can only direct you to the Law Society where all registered lawyers can be found by location, etc - http://www.lawsociety.org.uk/find-a-solicitor/#formtop
Customer: replied 3 years ago.

I did not ask you to take a decision for me whether or not to make a claim in the tribunal.However, I sought advice about the prospects of success if I pursue my claim in the tribunal.Please advise me about the prospects of success.


 


i understand your position that you can take clients through this site or recommend any specific lawyers.

Expert:  Ben Jones replied 3 years ago.
Sorry but we are not allowed to give prospects of success - we simply do not have enough information to be able to do this - you need to have a full case analysis to be given this
Customer: replied 3 years ago.

Thanks for the answer.


Please find attached some of the documents. I have two issues relating to this matter. Firstly, ID Medical is refusing to release the information requested under the Data Protection Act and they are refusing to respond to communications. NHS Trust concerned are also refusing to release the information. Can I file file a claim against them in the Employment Tribunal?


Secondly, I claimed Legal Expenses claim from DAS insurance to take action against ID Medical which they refused. I have complained to Financial Services Ombudsman Services against DAS Insurance. DAS consistently refuse all claims on very flimsy excuses. They refused claims recently and few years ago. Can I do anything other complaining to FSOS ? I feel they have misled me to take the policy and now at the point in time when I am in need, they walk away.

Customer: replied 3 years ago.

I was trying to attach document which I am unable to do .I will try again and if I am unable to do I will send them by email.

Expert:  Ben Jones replied 3 years ago.
Thanks I will let you know when I receive them
Customer: replied 3 years ago.

I have sent the documents by email because I COULD NOT ATTACH IT.


I will try again.

Expert:  Ben Jones replied 3 years ago.
What do you want to claim for in the tribunal?
Customer: replied 3 years ago.

For Ben Jones only


 


 


I am not keen to go the tribunal. But I do not know how to go about to get the documents released under the Data Protection Act -whether it is in the tribunal or other Government Agencies.


 


I want all the documents held by the Agency and the NHS Trust.


 


I also want the DAS Insurance company to be persuaded to pay the legal cost or , alternatively, be reprimanded for their attitude to persistently refuse of all the claims whatever they are

Customer: replied 3 years ago.

For Ben Jones only


 


I am still waiting for your advice and the documents were sent my email.

Expert:  Ben Jones replied 3 years ago.
I have not received anything yet can you please check where you sent them
Customer: replied 3 years ago.

For Ben Jones


 


I have been advised that the customer care has sent all the documents to you. I would be very grateful for your response

Expert:  Ben Jones replied 3 years ago.

I will check.

Expert:  Ben Jones replied 3 years ago.
ok I have received them now, there are quite a few documents though so you need to be specific on what you want me to look at and what questions you have as the initial fee will not cover looking through all these documents I'm afraid
Customer: replied 3 years ago.
I have only two questions and they are:-

1. The Agency and the NHS Trust refuse to release the documents under Data Protection Act although I have wrote to them several times. How can I force them to release the documents? I persuaded them but they do not budge.


2. DAS Insurance Company refuses to pay the legal expenses. I have few claims and they reject on flimsy grounds. What action I take other than a complaint to Financial Services Ombudsman?

I do not think you need to read all the letters. I sent them because you requested for it.
Expert:  Ben Jones replied 3 years ago.
1. Forcing a data controller to release documents held by them is not easy. First of all you have to exhaust all internal modes of appeal and once that has been done you can appeal against this decision by writing to the Information Commissioner at the address below:

Information Commissioners Office
Wycliffe Lane
Wilmslow
Cheshire
SK9 5AF

2. Insurance companies are notorious for rejecting claims on any grounds they can find, otherwise they will always be paying out and be out of business. However, the situation is similar to the above - you have to exhaust the internal complaints procedure with the insurance company and only once that has been done you can then go to the Ombudsman. If the Ombudsman rejects your complaint all you can do is go to court if you believe you have a case for breach of contract.
Customer: replied 3 years ago.

For Ben Jones



Thanks.



Is there anything else I can do if I am not satisfied with the Information commissioner? Which court would I go?Employment Tribunal again?



Ombudsman always colludes with Financial Institution. Are there tribunal or real courts I take the Insurance Company?


 


Expert:  Ben Jones replied 3 years ago.
No this is not an employment tribunal mater it would be the county court.

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