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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46809
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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Hi, My Tier-2 General sponsor has not paid me for a considerable

Resolved Question:

Hi,

My Tier-2 General sponsor has not paid me for a considerable period of time of my employment. The original job for which I was hired was retracted and the team was unable to find any suitable contract for me. I now have the PR and want to challenge him for payment of my salary as dues before resigning. I have a written and duly signed contract with the organization quoting an annual salary. My queries are:

- How strong is my case
- Will it affect my PR if I start a legal proceeding against my employer. I ask this because I am not sure if he at least paid my taxes and NI during the entire time.

Thank You.
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.

Ben Jones :

How much are you owed?

Customer:

Roughly around £60,000.

Ben Jones :

When was it due to be paid?

Customer:

I was on a annual salary of £40,000 per contract signed so the payments should have been monthly. But since the company was unable to find a contract for me, no payments were done. I was told (verbally) that all due would be settled as arrears once a contract is found but unfortunately it didn't happen.

Ben Jones :

so how far back does this go?

Customer:

August 2011

Ben Jones :

and was the last time you were due to be paid under this contract?

Customer:

I am still in contract with my employer. Just that he has now started to dispute some of my latest salary as well. I hope that was the question !

Ben Jones :

yes thanks, XXXXX XXXXX you actually do any work for them or were you not doing anything to justify you earning a salary?

Customer:

I wasn't working during this time but it was not my fault really that my organization couldn't find a role for me. And I was on a tier-2 general visa, so that means I was on a fixed salary per month.

Customer:

Even my signed contract doesn't say that I will not be paid during lean periods.

Ben Jones :

ok let me get my response ready please

Ben Jones :

Just to clarify at the beginning it is impossible to say how strong a case you have from the limited information we have about it so we cannot provide advice on that and can only tell you what the law is and how you can pursue the matter further.


 


So as far as the law is concerned, this potentially amounts to an unlawful deduction from wages, which is made illegal under the Employment Rights Act 1996.


 


Under law, an employer can only make deductions from, or withhold an employee’s wages in the following circumstances:



  • If it is legally allowed (e.g. to deduct tax);

  • If it is to recover an earlier overpayment of wages made by the employer; or

  • If the employee has given their explicit written agreement for the deductions to be made.


 


If none of the above exemptions apply, the deductions will most likely be unlawful. In order to try and resolve this, the employer should be contacted in writing, advised that this is being treated as unlawful deduction of wages and ask them to pay back the money within 7 days. Advise them that if they fail to pay the money that is owed, legal proceedings could follow.


 


If the employer does not return the money as requested, the following options are available:



  1. Employment Tribunal - the time limit to claim is only 3 months from the date the deductions were made. To make the claim, form ET1 needs to be completed and submitted - you can find it here: https://www.employmenttribunals.service.gov.uk/employment-tribunals

  2. County Court – this is an alternative way to claim and the advantage is that the time limit is a much longer 6 years and is usually used if you are out of time to claim in the Tribunal. The claim can be made online by going to: www.moneyclaim.gov.uk.


 


Hopefully by warning the employer you are aware of your rights and are not going to hesitate taking further action they will be prompted to reconsider their position and work towards resolving this.


 


If you make a claim against the employer then this would not directly affect your visa status – you will have separate contractual/employment rights to pursue the pay you are owed.

Customer:

Thank you for the information. Another query - What do you mean when you say "this would not directly affect your visa status". Is there any other way my visa status will be affected ! Reiterating, I am on an PR now and not dependant on this employer (Tier-2 Sponsor) anymore.

Ben Jones :

ok in that case then no, it should not affect it, I meant it if you were still dependent on them then they could try and do something to withdraw their support just to get back at you but if you no longer depend on them it should not be an issue

Customer:

Not even the fact that I was not paid during my qualifying period of ILR and, perhaps, no taxes or NI were paid by my employer that would render me sort of living unlawfully ! Although there is no way to confirm (at least the employee) whether an employer pays due taxes and NI correctly even under normal circumstances.

Ben Jones :

well that would be something you have to query with the HMRC (tax office) as they would know what was paid in your name

Customer:

If it wasn't paid according to what was required to be paid, who will be implicated - me or my employer !

Ben Jones :

depends on the arrangement, if this was due to be a PAYE arrangement where money was being taken directly from your pay it would be the employer

Customer:

Glad to hear that - It was indeed PAYE arrangement.

Customer:

So if I go to county court, will I have to go via a solicitor or I could approach directly !

Ben Jones :

you can do it yourself

Ben Jones :

It is not a legal requirement to have legal representation

Customer:

okay, got it thanks. Can you also recommend any good no win no fee employment lawyers in London, in case I wish to take some legal assistance !

Ben Jones :

I am afraid we cannot recommend anyone, you have to find someone independently, but you can start looking for local lawyers here:

http://www.lawsociety.org.uk/find-a-solicitor/#formtop

Customer:

Thanks. You've been really helpful.

Ben Jones :

You are most welcome. Please take a second to leave a positive rating for the advice I have provided as that is an important part of our process. Thank you and feel free to bookmark my profile for future help:



www.justanswer.com/law/expert-ben-jones/

Customer:

Sure, I will. Thanks again.

Ben Jones :

Many thanks

Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46809
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
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