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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 48771
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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My son resigned from a limited company and gave the required

Customer Question

My son resigned from a limited company and gave the required 2 weeks notice. When the pay date arrived no wage payment was made, when he asked the MD of the company why he had not received his pay, the reply was that the Chief Executive Officer had decided they weren't going to pay him. The reason given was that when he first started with the company 18 months before they had overpaid him. At no time during those 18 months was this mentioned and again was not mentioned when he gave his 2 weeks notice. Also nobody contacted him after he left to tell him he wasn't going to be paid. This seems to be despicable behaviour and has left him with direct debits to pay and no money to pay them. I have told him I will pay the County Court fees to serve a writ and get a Judgement. Is there any better way to deal with this?
Submitted: 1 year ago.
Category: Law
Expert:  Ben Jones replied 1 year ago.
Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today. Does he agree that he has been overpaid?
Customer: replied 1 year ago.
No definitely not and as I said, nobody had mentioned this before at any time.
Customer: replied 1 year ago.
(Posted by JustAnswer at customer's request) Hello. I would like to request the following Expert Service(s) from you: Live Phone Call. Let me know if you need more information, or send me the service offer(s) so we can proceed.
Customer: replied 1 year ago.
Ok I'll proceed with the online answer rather than the phone call.
Expert:  Ben Jones replied 1 year ago.
Do you want me to continue on here - I am available for a call if you would prefer that option?
Customer: replied 1 year ago.
Yes please continue online, it is not convenient to make a phone call at the moment.
Expert:  Ben Jones replied 1 year ago.
No problem. The starting point is that if someone has genuinely been overpaid by their employer, then that is not money to which they are legally entitled and it should be repaid. So the first thing to determine is if there was an overpayment at any point – they may not have mentioned it all this time but that does not remove the fact that there was an overpayment. The Employment Rights Act 1996 specifically allows an employer to deduct past overpayments from an employee’s wages so assuming that an overpayment did take place, they would be allowed to make such deductions. In the first instance I would ask them for evidence of when and how the alleged overpayments were made to determine if they actually had the right to claim that money back from him. If you are adamant that no such overpayment ever took place and they have not been able to prove otherwise you can consider taking the matter further. Court is an option but you should try and resolve the matter via other means first. You can go down the tribunal route which actually requires you to utilise a third party to negotiate with the employer (all done for free). So you can use this service to try and negotiate before considering in whether to issue formal proceedings. This is your basic legal position. I have more detailed advice for you in terms of the procedure you must follow to negotiate, 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, there I no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you
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Expert:  Ben Jones replied 1 year ago.
Thank you. As withholding pay from his wages could amount to unlawful deduction of wages if it is unwarranted, he can use the tribunal route to try and pursue this. A new feature in the employment tribunal’s claims process is mandatory early conciliation with ACAS. This requires prospective claimants to notify ACAS and provide details of their intended claim and they would then try to negotiate between the claimant and respondent to seek out of court settlement in order to avoid having to take the claim to the tribunal. It is possible for the parties to refuse to engage in these negotiations, or that they are unsuccessful, in which case they would get permission to proceed with making the claim in the tribunal. If negotiations are initiated and settlement is reached, then the claimant would agree not to proceed with the claim in return for the agreed financial settlement. The conciliation procedure and the form to fill in can be found here: https://ec.acas.org.uk/Submission/SingleClaimantPage If conciliation fails you can then consider whether to go through the small claims court or the tribunal to pursue this further.
Customer: replied 1 year ago.
With regard to the overpayment the Chief Executive Officer made no attempt to notify my son that he wasn't going to pay him, no explanation provided and the reasons were only communicated to him by a third party in the office. So no payslip showing deductions due to a prvious overpayment. In fact nothing at all. I would presume that if they can act in this way, they will just make up the overpayment figures? So would my son then contest this and follow up with legal action eventually?
Customer: replied 1 year ago.
Doesn't conciliation take a long time and would leave my son with a big financial loss in the meantime? I presume he can choose not to do this and start a claim in the Small Claims Court instead?
Expert:  Ben Jones replied 1 year ago.
If they are saying overpayments were made then there must be some evidence they are basing this on and they should provide such evidence on request, although they can refuse to and it may not come out until they are bound to disclose it in the disclosure process in court. Conciliation does not usually take that long, it may be a few weeks, but the advantage is tat it is free and can be successful, although of course no guarantees in that respect. He is entirely within his rights to issue a small claims claim instead
Customer: replied 1 year ago.
One last thing, if he chooses the Small Claims route can he do this online using the Online Claims service?
Expert:  Ben Jones replied 1 year ago.
yes he can
Customer: replied 1 year ago.
Thanks Ben, I have provided a rating already, do you want me to do it again? And will doing so incur futher costs
Expert:  Ben Jones replied 1 year ago.
No there is no need thank you very much, all sorted