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Ben Jones
Ben Jones, UK Lawyer
Category: Law
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Hi, I was hoping for some legal advice as to where I stand

Resolved Question:

Hi,

I was hoping for some legal advice as to where I stand with my employer.

I have been managing a bar/nightclub for the business owner for the past eight years. Despite numerous conversations over the years, he is still yet to provide me with a contract. Even though I have requested and been promised one on many, many occasions. In addition the business is facing financial difficulty due to the recession and some debts accrued due to some bad business decisions made by the business owner. Due to this my wages have been late and its been a real hassle getting them over the last few months, in addition we had an agreement that I would receive a £100 pension contribution each month on the condition I met a 13% wage bill each month. I have only missed this target a handful of times in the last eight years, the pension itself along with my contract and every other promise made my employer is still yet to materialize despite me asking and being promised time and time again. Though I was told the £100 per month was accruing in a pot ready to be put into my pension when it finally got sorted. I have recently learned this is not the case, my employer does not have the money that should have been building up and further more was never putting it aside each month as I was lead to believe. I was looking for some answers to the following questions if at all possible please;

1) What rights do I have without a contract, after eight years do I have any rights at all?

2) What can I do about my pension contributions, is there any way to get what I am owed?

3) Is there anyway to ensure I get paid when I am supposed to?

4) What action can I take against my employer if things do not get resolved?

Any advice you can give would be greatly appreciated, many thanks. XXXXX

Gavin
Submitted: 3 years ago.
Category: Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones : Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. How far back do the unpaid pension contributions go?
Customer:

One of the conditions of me accepting the job was a pension, he later told me I would get the pension contribution scheme based on the wage bill target (despite promising me a catch free pension from the beginning) a year or so into the job when he was still "promising to sort my pension out" I don't have the exact date I am afraid.

Ben Jones :

Ok well to answer your questions:


 


1) What rights do I have without a contract, after eight years do I have any rights at all?


 


There is no legal right to receive a contract of employment. However, an employer is obliged to provide you with a written statement of employment particulars within 2 months of you starting your job. This contains many things you would normally find in a contract - you can see a list here:


 


https://www.gov.uk/employment-contracts-and-conditions/written-statement-of-employment-particulars


 


2) What can I do about my pension contributions, is there any way to get what I am owed?


 


This would be a contractual issue (even in the absence of a written contract). You can argue that it was an implied contractual term that you will be paid these contributions and the employer's failure to do so amounts to breach of contract. As pensions contributions are specifically excluded from the definition of 'wages;' you cannot claim that this amounts to unpaid wages and you can only pursue it through the county court as a breach of contract matter.


 


3) Is there any way to ensure I get paid when I am supposed to?


 


You can never guarantee that your employer will voluntarily pay whatever you are owed so if you are experiencing difficulties with getting these amounts you can formally ask them to pay what you are due and warn them that you will not hesitate going further, such as to court, to recover these if necessary. His could prompt them to be more efficient in paying you what you are due, but if they are not, then you just proceed to court if necessary.


 


4) What action can I take against my employer if things do not get resolved?


 


Apart from pursuing the breach of contract claim, you can also consider resigning and claiming constructive dismissal by arguing you were left with no other option but to resign. As part of that claim you can also make a claim for the employer's failure to issue you with the written statement of your conditions and that can award you compensation of between 2-4 weeks' wages. However, before any formal legal action is taken or you decide to leave - try to resolve this internally by raisin a formal grievance with the employer.

Ben Jones :

Please let me know if this has answered your query or if you need me to clarify anything else for you in relation to this?

Customer:

realistically what are my chances of clawing back anything I'm owed pension wise if I take my employer to court for breach of contract and/or constructive dismissal?

Ben Jones :

Constructive dismissal will not recover any past pensions contributions owed - you would need to make a separate breach ofn contract claim for that. What your chances are is impossible to predict - it depends on what evidence is available, how you and the employer come across as witness, then even if you win the employer could refuse to pay - you are then stuck with being forced to take enforcement action against them such as getting the bailiffs in, seeking bankruptcty, etc

Customer:

what would you advise is the best course of action from here/what would you do in my shoes in this situation?

Ben Jones :

You should try and resolve this with the employer first - as mentioned use the grievance procedure first. If this does not resolve anything and you are in the same position, then you need to consider your options more carefully - I cannot tell you whether to resign or not - this will depend on your personal circumstances and how it will affect you, so only you can make that decision. But the county court claim can be pursued whether you resign or stay so you can do that in any event without risking your job

Ben Jones :

has this clarified things a bit more for you?

Customer:

thank you for your help

Ben Jones :

You are welcome, all the best

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