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Ben Jones
Ben Jones, UK Lawyer
Category: Scots Law
Satisfied Customers: 73939
Experience:  Qualified Solicitor
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My grandaughter worked as a carer for St Philips Care Home

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My grandaughter worked as a carer for St Philips Care Home for 3 years until December 2021 when she was dismissed .Scotland was on tier 2 then due to COVID but there was a photo on f/b showing her out with 4 pals. She attended work on the Monday morning as usual had her COVID test which was negative until a member of staff arrived and showed Manageress said photo. She was immediately suspended for 2 weeks but on her return was dismissed.This was early December 2020 and she was told she would still be eligible for the £500 for working through the pandemic.She had no means of support for 3 months but is now in employment St Philips wrote to her and said she was not entitled to this bonus even having worked through. Can you tell me under Scottish Law if this is correct?
JA: Was the termination discussed with a manager or HR? Or with a lawyer?
Customer: 2 appeals went in and the pics that were shown was of g/daughter with selfie of her and friend with3 boys in background level2 in Scotland at the time and 2nd appeal was refused because the noticed another person in the background
JA: Does the workplace operate with employees, freelancers, consultants, contractors or with unionised employees?
Customer: Yes but she isn’t part of Union and St Philips is a private care home
JA: Is there anything else the Lawyer should know before I connect you? Rest assured that they'll be able to help you.
Customer: No

Hello, I’m Ben. It’s my pleasure to assist you today. I may also ask for some preliminary information to help me determine the legal position.

What was the bonus payment based on? and if possible please upload a copy of the contract she had for this employment on here

Customer: replied 20 days ago.
Bonus payment was made to carers who worked through the pandemic which she did have to get contract from her to send on

OK I understand and thank you for providing this information. Please do not worry and leave it with me for now; I will get back to you with my answer as soon as I can which will be at some point today. The system will notify you when this happens. Please do not reply in the meantime as this may unnecessarily delay my response. Many thanks.

Many thanks for your patience, I am pleased to be able to continue assisting with your query now. Whether she is entitled to that bonus would depend on what the actual terms of payment were and if it was conditional on anything. For example, if it was conditional on her remaining in employment for a minimum period of time, r not being dismissed or specific reasons and she has not met these conditions, they can refuse to pay her on the basis that the official requirements for payment have not been satisfied. On the other hand, if the payment was unconditional and only subject to her working throughout that time, she should still be eligible for it.

If that was the case and if money is owed by one party to another, the debtor can potentially be taken to court to try and force them to pay up. However, as legal action should only be used as a last resort, there are certain steps that should be taken initially to try and resolve this matter informally and without the need to involve the courts. It is therefore recommended that the following steps are taken in order to try and resolve this:

1. Reminder letter – if no informal reminders have been sent yet, one should be sent first to allow the other party to voluntarily settle this matter.

2. Letter before claim – if informal reminders have been sent but have been ignored, the other party should be sent a formal ‘letter before claim’ asking them to resolve this amicably within a specified period of time – 14 days is reasonable. They should be advised that if they fail to make contact to resolve this matter, formal legal proceedings will be commenced to pursue them for the money that is owed. This letter serves as a ‘final warning’ and gives the other side the opportunity to resolve this without the need for legal action. If the letter before claim is also ignored, formal legal proceedings can be initiated.

For claims below £5,000 the Simple Procedure can be used. Please see here for further details:

https://www.scotcourts.gov.uk/taking-action/simple-procedure

For claims above £5,000, or more complex matters, the claim should be pursued through the Ordinary Cause. Please see here for further details:

https://www.scotcourts.gov.uk/taking-action/ordinary-cause

Once you hear back from the court, you will send the details of the claim to the debtor, who will have a limited time to answer it. They could accept it and pay what is owed, they could accept it only in part and defend the rest, or they could outright reject it. They could also completely ignore it, in which case judgment will eventually be entered automatically against them. Also, it is worth noting that the simple act of submitting a claim could show the debtor that this is being taken seriously and prompt them to consider negotiating a potential solution to stop the claim progressing further, such as offering full or partial repayment.

Hopefully, I have answered your query in a way that is simple and easy to understand. If anything remains unclear, I will be more than happy to clarify it for you. In the meantime, thank you once again for using our services.

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