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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46794
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I received a clothing allowance which I exceeded quite significanty

Customer Question

i received a clothing allowance which I exceeded quite significanty but not intentionally. i was never informed by my employer whether I had exceeded my allowance and it was only bought to my notice after I left the company. The company is now refusung to pay my outstanding bonuses or pay in lieu. I was the Finance Director at the time of exceeding my alowance. Is exceeding your clothing allowance considered gross misconduct?
Submitted: 1 year ago.
Category: Law
Expert:  Ben Jones replied 1 year ago.
Hello, my name is***** am a qualified solicitor and it is my pleasure to assist you with your question today. Was there a clause which allowed the employer to withhold any of these payments?
Customer: replied 1 year ago.
Hi Ben,Some backgroung may be useful. I was Finance Director of company x for 4.5 year. the company was in financial difficulty. One day I was asked into the office by my CEO and asked to resign and was offered a settlement agreement including my outstanding bonus and six month pay in lieu of notice. Two months after leaving the company i was advised that I had exeeded my clothing allowance by £70k over the period of 4 years. This was a complete surprise and was the first time that I was advised that this was the case. My employment contract outlines the factors that they consider gross misconduct which included fraud or theft. At this stage there has been no investigation or process followed regrading whether my actions constituted gross misconduct. My employment contract allows them to withold my leave in leiu of notice. I never signed the settlement agreement and have since commenced another job. Do i have grounds to pursue unfair dismissal due to the grounds on whch i was asked to resign? Do you consider my behaviour (exceeding my clothing allowance) gross misconduct. It is also important to note that the finance manager was promoted my role after I was asked th resign.
Expert:  Ben Jones replied 1 year ago.
When did you leave the company, when was your last day of employment?
Customer: replied 1 year ago.
I left the Compnay is July this year?
Expert:  Ben Jones replied 1 year ago.
How did you manage to exceed the allowance by so much, or do you even know if what they allege is true, have you been given any evidence?
Customer: replied 1 year ago.
Yes, I have since been provided with the evidence and agree that it is true. Whilst i was the Finance Director i was not involved in the day to day book-keeping. I had assumed that I was within the allowance when I was procuring the clothes. This was completely unintentional. There was no process is place to infrom employees of what they had spent against there allowance. From the tone of your email i think you feel they have grounds for dismissing me for gross misconduct? If this is the case do I still have a claim for unfair dismissal given that I was asked to resign or are you suggesting that had they known of the alleged gross misconduct at the time i dont have any grounds for unfair dismissal?
Customer: replied 1 year ago.
hI ben - are you still on-line?
Customer: replied 1 year ago.
Hi Ben - do I need to make a further payment to conclude your advise as I still dont know where I stand?
Expert:  Ben Jones replied 1 year ago.
Hello, sorry I lost my connection for a short while. I am just finalising my response so I will respond shortly. Thanks for your patience.
Expert:  Ben Jones replied 1 year ago.
As far as unfair dismissal is concerned, you would be too late to claim that unfortunately. There is a strict time limit of 3 months from the date of dismissal to submit a claim and if your employment was terminated in July, the 3 months would have already passed. The fact that you did not know you could have claimed or were unaware of the time limits would not be a defence that would allow an extension. In fact this is very rarely given so I would put the unfair dismissal option aside.
In terms of gross misconduct, it is possible that what you did may amount to that. There is no specific list of GM offences and in theory the list is indefinite and would depend on the type of employment, the industry, the duties, etc. However, in general, there must be an act so serious, that the employee/employer relationship is broken beyond repair and the trust is lost. Now, your actions may have been completely innocent and the overclaiming may have been an unintentional act on your part, but the employer’s investigation may show otherwise and when taking a decision on whether to dismiss or not, they are only required to undertake a reasonable investigation and show there was a genuine belief of guilt on their part. They don’t have to go as far as a criminal court for example and show that there was concrete proof.
Saying that, they do not appear t have given you the chance to answer the allegations or defend yourself so that could make the whole process unfair. So whilst they may have a clause allowing them to withhold your payment in lieu of notice, you could still challenge that and there also does not appear to be a clause allowing them to withhold the bonus.
This is your basic legal position. I have more detailed advice for you in terms of your next steps to pursue this and how to try and retrieve what is due to you, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, leaving a rating will not close the question and we can continue this discussion. Thank you
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46794
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Law Specialists are ready to help you
Expert:  Ben Jones replied 1 year ago.
Many thanks for the rating. Whilst you may have been able to pursue this money as unlawful deduction of wages, there is also a 3 month tie limit to make such claims so you have missed the boat there too. However, the good news is that you can also consider pursuing it as a breach of contract in the county court, which has a much more generous 6 year limit.
Whenever a dispute arises over money owed by one party to another, the debtor can be pursued through the civil courts for recovery of the debt. As legal action should always be seen as a last resort, there are certain actions that should be taken initially to try and resolve this matter informally and without having to involve the courts. It is recommended that the process follows these steps:
1. Reminder letter – if no reminders have been sent yet, one should be sent first to allow the debtor to voluntarily pay what is due.
2. Letter before action – if informal reminders have been sent but these have been ignored, the debtor must be sent a formal letter asking them to repay the debt, or at least make arrangements for its repayment, within a specified period of time. A reasonable period to demand a response by would be 10 days. They should be advised that if they fail to do contact you in order to resolve this matter, formal legal proceedings will be commenced to recover the debt. This letter serves as a ‘final warning’ and gives the other side the opportunity to resolve this matter without the need for legal action.
3. If they fail to pay or at least make contact to try and resolve this, formal legal proceedings can be initiated. A claim can be commenced online by going to www.moneyclaim.gov.uk. Once the claim form is completed it will be sent to the debtor and they will have a limited time to defend it. If they are aware legal proceedings have commenced it could also prompt them to reconsider their position and perhaps force them to contact you to try and resolve this.
Whatever correspondence is sent, it is always advisable to keep copies and use recorded delivery so that there is proof of delivery and a paper trail. The court may need to refer to these if it gets that far.
Hope this heps
Customer: replied 1 year ago.
Thanks Ben - i've given you a five star rating. Regarding the 3 month period i was put on garden leave for 6 months until January 2016 after which my employment would be terminated. Does this change the outcome of your advice? I'm also still confused if i could still claim unfair dismissal (as a result of them failing to follow due process by asking me to resign) even though they claim gross misconduct?
Customer: replied 1 year ago.
Hi Ben, thanks for all your help - if you could just clarify this last point I would be most grateful. Thanks
Ian
Expert:  Ben Jones replied 1 year ago.
Right, well that does change things - sorry I assumed your employment had actually terminated in July. If you are on garden leave then your employment continues and the time limit would not have actually even started yet. That only starts from the effective date of termination, which is when your employment ends and in this case it would be once the garden leave period finishes. As to the claim you need to make, if you were actually forced to resign in the end and that is how your employment terminated, you would be claiming constructive dismissal. Unfair dismissal would be if you were actually dismissed. But that will just cover loss of earnings from being forced out of your job. the payments you are due would still be pursued as a separate claim although you could make them at the same time as the constructive dismissal claim. As mentioned, even if you are ut of time for these, you can still make the county court claim within plenty of time
Customer: replied 1 year ago.
Even though they are claiming gross misconduct? Ben you have been excellent. Please let me know if there is a further charge?
Expert:  Ben Jones replied 1 year ago.
Well it depends on what exactly happened. Initially you were asked to resign and that s what triggered your notice period. During the garden leave you were still working though your notice period as a result of resignation. In the meantime the employer could dismiss you for gross misconduct and that would change the situation from a resignation, which hadn't formally ended the employment yet, to an instant dismissal. But it depends on what happened - did they just bring up the GM issues and ask you to resign, mentioning nothing again about dismissal, or did they ask you to resign, then later brought up the GM issues and state that you had been dismissed. There is no extra charge as far as we are concerned. you have the option to leave a bonus if you wish but it is entirely up to you.
Customer: replied 1 year ago.
Ok - i will be delighted to give you a tip. Where I am at the moment is (1) I was asked to resign which i did and then enterred into a period of garden leave then (2) 1 month later the accusation of GM was put to be. At the moment I have not been dismissed.I think what you are saying is that if my employer pursues the claim for GM against me and they dismiss me on this basis then I dont have any claim for unfair dismissal?
Expert:  Ben Jones replied 1 year ago.
Not quite. They can use the allegation of GM and dismiss before the end of your notice period. That would then make it a dismissal rather than a resignation and opens up the option of claiming unfair dismissal. Whether you have a case for claiming that would really depend on the procedure the employer followed. In order to justify that dismissal on grounds of misconduct was fair, the law requires that the employer:· Conducts a reasonable investigation;· Follows a fair disciplinary procedure;· Has reasonable grounds for believing the employee was guilty; and· Show that dismissal was a decision that a reasonable employer would have taken in the circumstances. Also bear in mind that a claim for unfair dismissal will only compensate you for loss of earnings arising from the dismissal so if you have found a new job which provides similar earnings, your losses are limited and probably not wroth claiming for. But it does not prevent you from making a claim for the money owed. PS: Thank you for the tip, it is much appreciated
Customer: replied 1 year ago.
ok, thank-you
Expert:  Ben Jones replied 1 year ago.
You are welcome

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