Unreasonable employer - advice needed

[Newchodge]

Keep a copy of the sick note and send the originl to your employer. Do not answer anyt of their ridiculous proposals. If they haven't paid everything you are owed by the date ACAS suggested, get back to ACAS and ask them to start the early comciliation process.

Your employer cannot take legal action against you.

 

[The Byre]

I understand why to keep it short, sharp and factual, but why use the post? Is there something wrong with sending an email?

For the very reason that you are still wasting effort by getting upset - you need to keep these people at arm's length. Their blizzard of idiotic emails is doing a great job of intimidating you.

 

[awkwardflower]

Thanks for your replies. I really appreciate them, this forum is a piece of reason and mental peace in this mad mess!

I also doubt that it was their HR advisor who suggested these ridiculous ideas, and I also doubt that they met someone of any expertise at all. In this last email they mentioned that they will have another meeting today. So I'm waiting to hear from them today. My secret hope is that they do meet an actual HR expert who will tell my employer like it is, and they will have to pay me what I'm owed without any further hassle.

If that doesn't happen, I tell them what ACAS told me. I'm going to post the second sick note today as well.

 

[Newchodge]

If that doesn't happen, I tell them what ACAS told me.

Make sure you do that in writing.

 

[awkwardflower]

Yes, I did that, thank you. I sent them the second doctor's note yesterday and I emailed them when they should receive it, along with the info I got from ACAS.

As a response I received two angry emails in a row. I don't think they understand that trying to blackmail me into accepting to be paid out up to certain days of employment is not making their deduction of wages lawful. They think that not being paid is my fault for "not accepting their offers". They insist that because of how I let them down as an employee, they are still "pursuing legal options". That can't really mean anything real, can it?

Of course, I haven't responded to these, and I only write them with facts or new information (e.g. notifying them about continuing sick leave, or what ACAS told me to do). They are very vague with their responses. But I hope that their HR expert did explain what their limited options were. What I hope is that they will calm down and pay me without having to enter Early Conciliation. I'll wait for those days as ACAS suggested, and we'll see. Thanks for your advices!

 

[JeffreyMills]

They are bluffing. There are no legal options which they could pursue.

 

[SteveHa]

I've been watching this without commenting, but it's time to. JeffreyMills is bang on. They have nothing.

You, on the other hand, have a bucket load of evidence against them for harassment, and, potentially, constructive dismissal (which can be pursued even when you haven't been employed for two year - I'm sure Cyndy will be able to expand on this).

To the OP, the first thing you need to do is stop worrying. You have nothing whatsoever to worry about. At the very least, National Minimum Wage laws mean that they cannot refuse to pay you.

 

[awkwardflower]

Thanks for your replies. I also think they are bluffing, but that doesn't mean they won't try to make it difficult for me, just because they can. Unfortunately there is still no sign of them paying, although the 7-14 days ACAS suggested is not over yet.

Is Early Conciliation usually over the phone, or does it involve personal meetings? I'm asking because I will have to be abroad next week for two weeks for a family matter and I wonder if I can at least start it while I'm there, or if it's best to wait another week. I'm reluctant to phone again because there isn't a lot I could ask that they haven't answered before, I just want to know informal things like how long they would take if I started the process? Last time they said that I will have to file for Early Conciliation within 3 months of the dispute, so I can easily wait until I'm back in the UK, I just don't want to give my employer too much time.

I also worry they could refuse the Early Conciliation just to make things difficult. How would an employer tribunal claim affect my chances of getting another job? What if I found one and I would have to miss days for hearings and stuff, how would I explain that somewhere where I'm new?

 

[JeffreyMills]

ACAS can explain the Early Conciliation process to you. It usually lasts up to a month, it’s done by phone. ACAS contact the employer so you don’t do anything much apart from speak to ACAS by phone.
If it isn’t resolved (they don’t pay what they owe you) then the certificate is issued and you can make a claim to a tribunal if you want to. You may not want to.
A Tribunal claim is unlikely to affect a new job. How would a new employer find out. If the old employer makes up lies they are easily proved wrong. Your claim would be for unlawful deduction of wages, that does not spell “troublemaker” to an employer, it spells “bad employer who didn’t pay wages”

 

[awkwardflower]

That's another reassuring reply, thanks again. I still haven't heard from the employer, so I will wait until the time ACAS suggested and I will start the Early Conciliation if nothing happens, even if I'm abroad, I won't be too far anyway. Thanks again, if anything happens I will post an update Hopefully it gets resolved soon.

 

[awkwardflower]

So, the latest development is that I received an online version of my P45, and ONE day's payment, as holiday payout (??) not sure how that worked out.... I worked for a full week in February before I took sick leave, but they dispute my entitlement to the sick leave and they STILL want me to invoice them for those bloody days in February!

They said they contacted the GP about "adjusted hours" since I offered some help while I was off sick, what does that even mean! They want to have a meeting to "settle it" but I'll be away next week for two weeks. They are angry that I didn't respond to their last emails but what am I even meant to reply to two angry rants?

I still think I should start Early Conciliation next week. I'm not going into any meeting with them without any legal backup.

 

[JeffreyMills]

What does it mean? It means they contacted the GP, and what would the GP say? UnderGDPR they can’t discuss your medical details with a third party....so very little, beyond ‘yes we issued that note’’
You’re entitled to what you are owed. Get on to ACAS. Any meeting about “settling” will be a swindle. ACAS do exactly the same as a settlement, for free, with no meetings.

 

[awkwardflower]

Thanks! I thought so about the GP, and I think the same about these "meetings". I will notify ACAS first thing next week. In the meantime I realised how the one day holiday pay worked out: they basically unilaterally decided that my employment ended on 31st January, without working my month's notice or being paid in lieu. That's why now they expect me to invoice them if I want my February money. I think that's really dodgy!

 

[antropy]

If ill, don't offer to do some work. And never accept the company trying to force work off on you when ill either.

I completely agree, it is hard not to be nice and be considerate but you need to put yourself first. You have a medical note, take time off and make sure you get yourself right before even considering going back to work (whether that be at this current place or somewhere else). Alex

 

[awkwardflower]

Thanks for your replies. ACAS have been in touch and unfortunately my ex-employer do not seem to be too engaged. The ACAS councillor has been told that "I was offered multiple options to sort it quicker" and that "other employees" (there is only one more) have also been complaining about my behaviour (?), and that "I rejected multiple meetings".

I think they expect me to take them to a tribunal and that they will bring the other employee as their witness. However I'm pretty sure I have quite a strong case since I had a written contract of employment, written notice given to me (in which they praise some of my work and there is zero complaints of my behaviour), and also all the communication after my sick leave took place in writing.

I'm really sad to see this escalating and I really don't know what to do. On one hand I want my money and I don't want them to get away with it, on the other hand I can't really afford a costly lawyer to represent me. What can I expect at a tribunal? If I lose, will I have to pay everything, all their costs too and everything? How long would this take?

 

[JeffreyMills]

ACAS can answer all of these questions.
You have a claim for unlawful deduction of wages. The matter in hand is only to establish whether you were entitled to be paid, and if so, were you paid.
You fill out the ET1 form after the EC period ends and certificate is issued. The ET writes to accept it and asks the employer to respond. The date can take over 6 months. It is a court but a very informal one, in an office essentially. The Judge is usually a barrister and usually extremely helpful if you don’t have a lawyer.
From what you have said you are unlikely to lose. It would be very unusual for the other side to pursue you for costs if you lost, if they did (it’s seen as very bad form) it would be rare that they were awarded, unless you had clearly set out just to make baseless claims you had no evidence for and were wasting everyone's time.
The claim can be “settled” via a cot3/ settlement agreement which ACAS draw up/handle, at any time, even the day of the ET (known as “they settled on the steps/on the way in”)

Your case is simple: you have a contract, your letter of notice, your payslips and the emails where this manager tries to get you to be self employed/dismissed on the spot/not pay sick. Everything else is a load of smoke and distraction. No witnesses are relevant.

 

[awkwardflower]

Wow that was super helpful! Thanks a lot. Yes, I will ask ACAS again for these next steps, but we agreed that they will try again once more, just in case, although they did say they cannot force them obviously. Then when it's confirmed, I will ask my questions from them too.

I also think I'd have a strong case but god knows what kind of counter claim would they be thinking of. I try not to be too worried but obviously I don't want any of this stress. Thanks again for this!

 

[JeffreyMills]

They do not have a counter-claim. They do not have a Legal means to pursue you. The best they can manage would be to counteract your evidence with some nonsensical pushback that you are a liar/bad apple/bad employee/of dubious ability. Which you may indeed be, however all the ET can rule on is whether -legally- you should have been paid, and if you were not paid, then they create an order for them to pay you.
In reality this idiot will probably fail to turn up, or will indignantly throw so much mud at you that the ET will have no sympathy for the employer and every sympathy with your (easily proven) claim for missing money.
They may just cave in soon anyway

 

[awkwardflower]

You were right, ACAS called again today and I was told they are ready to settle it They still don't accept that I was sick though and now they even brought it up to them that I travelled abroad during a period my sick note covers... (not that I shouldn't be allowed to see my family while off with stress, and not that they should care what I do with my time after our period of employment ended anyway). But they offered to pay an amount close to my original claim. So ACAS told me that they will let them know that I accepted the settlement and will prepare a document. This is going to be finished, right? Once this is settled, they will not be able to sue me back for it, or use any of their ridiculous claims, right?

 

[JeffreyMills]

Once it is settled, and they have paid the money it is done. You should ask ACAS about an agreed reference as part of the settlement. All you want these jokers to put on any reference request is the dates you were employed and your job title.
There are no grounds the company can “pursue” you legally from what you have said. Have you tried to search the internet for stories and articles about English/Welsh/NI business sueing employees for “fake sickness” and the like? You will not find anything remotely like it!

 

[kkfcXHzmCc]

I've been following this since you posted! Glad you got it sorted.

 

[Employment Law Clinic]

So ACAS told me that they will let them know that I accepted the settlement and will prepare a document. This is going to be finished, right?

Once it is settled, and they have paid the money it is done.

Actually, once the form of words agreed to be entered on the settlement document - known as a COT3 - is approved by both sides (and this can be done over the phone to ACAS), it is done.

Regardless of whether payment follows or not, any opportunity for a tribunal claim in relation to this matter has gone; only the (entirely new & separate) enforcement of the contract - the COT3 - remains.


Karl Limpert

 

[JeffreyMills]

Karl, you seem to be on a mission to take lines out of context and expand on them. The conversation was regarding whether the employer can “pursue” the ex-employee (as they have repeatedly indicated) for such nonsense as “contacting the GP” or that they were in some way lying about being sick, because they offered to complete some work from home whilst signed off.
Is it the case that if the employer breaches the terms of the COT3 by not paying, there is no recourse for the ex-employee to take action on that breach? This seems to be your point!

 

[Employment Law Clinic]

Karl, you seem to be on a mission to take lines out of context and expand on them. The conversation was regarding whether the employer can “pursue” the ex-employee (as they have repeatedly indicated) for such nonsense as “contacting the GP” or that they were in some way lying about being sick, because they offered to complete some work from home whilst signed off.

Not at all on a mission, or quoting out of context. The thread has evolved from whether the employer can pursue the employee, with sensible advice offered by many, including you Jeff.


The post I quoted - #60 in the thread – specifically stated that “… and they have paid the money it is done”. It was this specific point that I was correcting – that the settlement, resolution of the proposed tribunal claim is resolved when the terms are agreed by the parties; there is no option to continue a tribunal claim once the settlement terms agreed, even if the money isn’t paid.

Is it the case that if the employer breaches the terms of the COT3 by not paying, there is no recourse for the ex-employee to take action on that breach? This seems to be your point!

Of course there’s recourse if the employer fails to follow-up on the terms of the COT3, but that is not with the employment tribunals, so I suggest it is misleading to state “…. and they have paid the money it is done”. It’s simply an entirely new legal action that would need to be taken to enforce the terms, but the actual settlement would be done the moment the parties agree to the terms.

A Tribunal claim is unlikely to affect a new job. How would a new employer find out.

As a matter of public record? Decisions are already available online…



Karl Limpert

 

[awkwardflower]

Thanks a lot again for your advices. I have left a message today to the ACAS advisor as we are in the third week of conciliation and I haven't heard any update since I was told that the former employer is willing to pay. Is this normal to take this long?

I'm not sure I understand what Employment Law Clinic wrote about "whether payment follows or not, any opportunity for a tribunal claim in relation to this matter has gone; only the (entirely new & separate) enforcement of the contract - the COT3 - remains."

Are you saying that if they don't pay, I won't be able to take them to a tribunal because the matter is "settled"? So what else can I do then if they don't pay? I was told by ACAS that this document would be legally binding, so surely, ignoring it would have some consequences?

I hope I can see the end of it soon! I've also started a new job this week! However, my P45 from this troublesome place is filled in with the wrong end date, when they decided to just cut my notice period (and asked me to invoice for the last month....) Now, this does not look so good, because it now makes it seem that I lied on my CV when I applied stating I was still employed and in my notice period, whereas according to the P45 I left earlier. Can I do something about this without letting too much on to my new employer, e.g. can I fill in something else instead of a P45? Or will they send me a new P45 once this is settled? I guess the settlement will have normal deductions but will it not count time-wise?

 

[Newchodge]

Calm down. Your ex employer is still playing their games. ACAS will let you know when the conciliation period is over. They may ask you to extend the time, don't agree, it is more game playing.

Nothing has changed until and unless ACAS asks you to sign a settlement. If they don't agree and sign a settlement you still go to tribunal.

You can tell your new employer that you still don't have a P45 and complete a new starter's form instead.

 

[awkwardflower]

Damn you're right, ACAS called me back today saying that they sent the draft to my ex-employer but they will go on holiday and will get back to them after that ahaha....

My new employer asked to see my last payslip but again that's not something I have for the last month.... They want to fill it in correctly because that's the end of the tax year..... I told them I don't yet have the P45 but can I also tell that it was January what I could find? If they calculate my earnings based on that, can they find out about what happened in February? I don't mind overpaying a little tax if that means I can just start afresh...?

 

[awkwardflower]

I decided I will send my new employer the P45 I have, and if they ask why the date was wrong I will tell them it was a mistake they made. That is my version of the truth. I presume the settlement - if there is any - will have all necessary tax & NI deducted as usual?

 

[Scalloway]

You can tell your new employer that you still don't have a P45 and complete a new starter's form instead.

If I was putting you on my payroll that is what I would do. When HMRC are aware you are employed they will write to the employer with the figures they need.

 

[awkwardflower]

I asked about this but they said that due to it being the end of the tax year they'd prefer the last pay slip then if I have it (which I don't have but how are you even to tell them on your first week that you're fighting for your last pay.... I feel lucky to have found this job and it's in my preferred market. They seem to value their staff and are concerned when they leave, so I don't want to come across like someone who runs away from responsibility to the doctor....)

So I will just give them the p45 as is with the wrong leave date on and if they ask I will say they got it wrong, but my earnings are correct. I don't want more fuss I just want to be paid what I'm due, and then focus on the new role.

 

[Chris Ashdown]

Yup great idea. start a new job on a lie, bound to build confidence in you, they just need the P45 no story, no history just the bloody form

 

[kkfcXHzmCc]

Yup great idea. start a new job on a lie, bound to build confidence in you, they just need the P45 no story, no history just the bloody form

^ Enough said. Stop being an awkward flower about everything and just get on with it. Bloody people these days...

 

[Newchodge]

^ Enough said. Stop being an awkward flower about everything and just get on with it. Bloody people these days...

I know it is an absolute disgrace, employees expecting to be treated as human beings and to be given their legal entitlements, and then being afraid that their new employer may find fault in them for a situation that is not of their making. How dare employees act in this way? Small businesses have enough to deal with without having to worry about paying their staff in accordance with the law.

 

[SteveHa]

I asked about this but they said that due to it being the end of the tax year they'd prefer the last pay slip then if I have it (which I don't have but how are you even to tell them on your first week that you're fighting for your last pay.

Your new employer is wrong if they think the last payslip is of any use to them. The only documents that can be used to determine your tax code are P45, new starter form or HMRC notice. Nothing else whatsoever is admissible.

 

[awkwardflower]

Thanks for your replies! The new employer did not so far mention any issue with the P45, and I got my first payment too (however on my first payslip I noticed no Student Loan or NI deductions, perhaps I did not reach any threshold for the short time I worked this month? I only started at the end of the month). It's been fine so far and I like it

However, ACAS called again about the settlement and my ex-employer has revised the payment they are willing to pay, which now magically works out to be the same as what they offered as if I freelanced for them. They still think that is somehow relevant but the SSP is not. They also want to deduct NI and tax from this settlement, but if they do, that means I was employed, right? So they should still have to pay the SSP? Grrr... It's not the amount of money, it's just that it stinks and feels a bit unlawful? I asked ACAS to include the exact payroll calculation into their document. But that I'm willing to accept it without the SSP, that makes them get away with it I guess.... at least I'll be rid of them for good soon!

 

[JeffreyMills]

Are they offering a settlement that is less than NMW?

 

[awkwardflower]

I'm not sure. I haven't seen the calculations, but they are simply refusing to pay SSP. They are ignoring that part. They are also disputing I had 2 days holidays left but they are "willing to pay me 2 days extra". So basically what they are offering to settle are the days I worked + 2, at the rate I was employed at (which was above NMW), minus NI and other deductions.

 

[awkwardflower]

To clarify, I guess my concern is that by agreeing to the settlement I effectively admit that I'm not entitled to the SSP because I wasn't really sick if I'm not ready to pursue it huh. When in reality, it's too small an amount to fight for at a tribunal, and neither are these people worth dealing with any longer. The annoying thing is that when I told this to the ACAS advisor she just went "Oh let me look it up and remind myself what this is about." lol...

The worst thing is these people are professional bullies and know how to tire everyone out and that's why they will get away with it because I just give in, afterall I have a new job now and I just want to move on with my life. So If I agree to this settlement, am I leaving myself in a vulnerable situation (legally or otherwise)? Is it going to always be legal? I don't care about £180, it's just the absurdity of bullying someone to sickness then denying to pay the legal minimum and getting away with.

 

[Newchodge]

It is your decision. Personally I would tell them to stick it and insist on the payment you were entitled to. If there are tax and NI deductions to be made, ACAS will sort those. It is your choice between getting on with your life in a job that is looking good and letting them get away with it.

 

[awkwardflower]

Thanks for this. I didn't know ACAS are to do the deductions. They rang again last night, saying that the employer didn't quite understand what I asked for. Basically they want to deduct some of it for tax and stuff, themselves, rather than offer a gross amount and leave ACAS to sort the rest of it. What I asked was to list these deductions because I wasn't sure how it worked and I wanted to see it in detail. What's being disputed is how long I was employed with them - they think my last day was when I reported the sickness, so I just wanted to see how they worked it out. They responded to ACAS in email to that, saying that "it's my duty to report my earnings to HMRC". The ACAS advisor wasn't sure what this has to do with anything. ("They sent me an email, and I don't think they understood...." - whaaaat? They keep sending random emails with weird interpretations of what was being said? Noooo waaay, these employers aren't known to do that hahaha....)

Anyway, today is the last possible day of early conciliation and I still haven't seen the draft of that agreement. I think they are waiting until the very last minute so I will either have to accept or decline with no time to request any change at all. I don't think they understand that they are exposing themselves to the risk of a tribunal claim, and I don't think they are getting any advice from anyone, or if they do they certainly don't seem to take it!

I don't know yet what this agreement will say, but I expect to receive it today. If they do send it, depending on how I feel by what is being written, I might accept it because I just want to move on and enjoy my new job. If they don't send it in time I will have no choice but take them to a tribunal I really want to put this whole hellish workplace behind me but I think they are being vengeful because I took ill when they were on holiday and this is how I'm supposed to pay back. Except that I didn't breach the contract/employment law, they did.