Ex-employee problems

[AnneLou]

Several months ago, we employed a lady to work in our bar/restaurant a couple of shifts a week. She turned out to be a nightmare employee - her sickness record was way beyond anyone who had ever worked for us. She had formed a habit of turning up for her shift, disappearing for a short while after about an hour, then claiming she had been sick and needing to go home. This put our shifts short, increased the pressure on co-workers and caused us to cancel our own plans and rush to work to cover her absence. Other staff would then inform us that she had been seen "out about town" the night before.
The last ocassion she did this, was the day before she left to go on holiday abroad. Needless to say, her holiday went ahead but we had to cancel our plans to cover her shift. When she returned, I instructed our manager to take her off the rota - she arrived on premises demanding to know why and I informed her we could not work with her repeated absences. She was furious and began a short campaign of ranting texts - threatening us with newspaper coverage for expecting her to work when she was sick, and texting other staff members with claims that we cheated their hours.
We ignored her and hoped the situation would just clear up after she had calmed down.
Several months have now passed - she only worked for about 12 weeks (some of that was sickness and holiday) and finished in March this year - before we have heard from her again. This time, she hand-delivered a letter threatening us with "small claims court" if we do not pay her holiday pay. She states that she has made two previous requests for her payslips, but we have received no such requests. This letter is the first formal communication we have had other than the initial ranting texts.
We produce payslips each pay-run and they are left for staff to collect from a file kept behind the bar - they are destroyed after about 6 weeks if they are still there. I don't have the inclination to babysit staff and personally hand-deliver their payslips!
Some help on this matter would be much appreciated - and just to clarify, no she did not receive a contract. I'm well aware that this is remiss of us but as our company has only just expanded, we have only recently been flung into the domain of disgruntled employees as we're trying desperately to balance all the demands!
Could she use the small claims system in this situation? Is she entitled to holiday pay when she behaved so dis-respecfully to our business and her colleagues and how would she be able to prove how much she could be owed?
I really feel like her recent letter is just another bitter hit at us because she ends the letter by stating that her father recently died and she can now give the matter her full attention. She only worked for us for a few shifts and it wasn't even her main job - I'm wondering if she lost that also!

 

[classixuk]

The law states that all employees are entitled to 28 days paid holiday per year and that this is accrued from the very first day they start working for you.

It has nothing to do with how much of a bad employee they are. That's what warnings are for and the dismissal procedure.

In the real world she would have been offered a contract with a "trial period" of 13 weeks, under which both parties could terminate the agreement at any time if the following are not met:

• attendance - the employee will not be absent from work due to sickness for more than X days in the 13 week period.
• etc.

I understand she was given no contract or working terms, but why were there no warnings given before she was removed from the rota i.e. sacked? You left yourself open with that one and you're lucky it hasn't backfired.

You need to calculate her accrued holiday pay and forward it to her.

Sorry if that's not what you want to hear, but it's the law.

 

[AnneLou]

She received no "warning" because we did not want to run the risk of her creating havoc with another shift. Its not fair on my family to have our lives constantly disrupted - we have quite a few employees now and we always seem to be in the zone of "fire fighting". We seem to be infected by their lives and domestic issues whilst trying to cope with our own! We have rules but they seem to be constantly broken and bended to suit the individuals. When they crash a shift, it is us who has to pick it up - where are our rights! Her behaviour had serious consequences on our business.
I am aware of some issues of employment law but I am just one person - not a big conglomerate. We have created a small business which pumps money into our local economy. We provide jobs directly and indirectly through buying services. Not a day goes by when I arrive at work and do not face some "threat". Employment Law, Health and Safety, Fire Regulations, License Regulations, Trading Standards, Environmental Health and even laws about having the right bloody step-ladders on site!!
We're just tired of being taken total advantage of - we feel like we are working very, very hard, holding our heads above water in a difficult trading economy and being pushed to the brink with pointless laws which hinder our business and reward those who can work the system.

OK - sorry about the whinge! Must of been a bad day!
I'll try and stay on track!

So far we have received a letter from the lady demanding payslips. I suppose that I would of felt more comfortable if she had gone through a solicitor as that would of made it less personal. She has threatened small claims court. Would that be an option for her? How would she know how much to make a claim for - what if her calculations are wrong? We do not have her original payslips anymore. We do use a professional payroll company and can obtain copies but they will charge us a fee for doing so - can we ask her to pay the fee?
Is there a time limit for her? She has waited almost five months before coming back on the attack!

 

[Podge]

Are you aware that being an employer carries a certain level of responsibility?

 

[Richie N]

As an employer you have to pay the holiday pay regardless of her work, attitude etc.
You will need to calculate this based on the hours worked. I am sure your accountant or whoever does your payroll can do this for you.
Employees can request payslips and you should provide copies on request. They shouldn't really be destroyed after 6 weeks. If they are still sitting there after 6 weeks file them away in a folder in case they are requested at a later date (such as now).
You should also provide the employee with a P45 once their holiday pay has been paid.

Small claims is probably a better solution for you rather than the employee going through ACAS and a tribunal to get their holiday pay.

Calculate the holiday pay, pay them and issue payslips with a P45. I'm sure you can do without the headache, but the end result will be the same, you will have to pay them no matter what.

 

[AnneLou]

I'm drowning in awareness! Its emotionally crippling! I carry the burdon of my employees 24 hours a day 365 days a year.
It always amazes me that my employees can cast aside their commitments to my company without a shred of care when it suites them but I would not dare ever delay their payroll. I am there each and every month working against the clock to make sure payroll deadlines are met - my nerves are frazzelled! I only get paid after everyone else - providing cash is available. I take my responsibilities very seriously. I cover all their endless holiday leave whilst mine goes by the wayside. This lady repeatedly crashed her shifts which I had to cover and then she still expected me to be at my desk administering her payroll. She has made demands on my time and energy and seems to expect me to drop every other aspect of my business and return to my desk to sort out her issues. Ooh - you can be assured I'm aware of my responsibilites! They're etched on my face!

 

[AnneLou]

Thanks Ritchie. Deep down, I really knew what I should be doing! I'm just in a bloody minded frame of mind at the moment and a tad angry! I guess that I wanted her to have to "work" for the money - not just hold her hand out and make a demand. I've got to stop everything else and spend time on an ex-employee and its driving me mad.
You're right - I can do without the headache.

I've never had a problem with holiday pay in the past - many of my employees were full time and I always felt they had well and truly earned the time off. My biggest issues are with short-term, none-committed people who want a job but don't want to work the hours! They seem to think I can magic staff from thin air and it is a constant drain.

I know that as my business has expanded (not necessarily satisfactorily I might add - but thats another story!) I have to get more savvy. I've been off the "shop floor" for a while now as all my time is spent on administration. I yearn for a government that recognises the value of small businesses in the local economy and gives us some breaks! Paid holiday for myself would be nice - ooh 28 days a year, how lovely!

 

[Podge]

I'm drowning in awareness! Its emotionally crippling! I carry the burdon of my employees 24 hours a day 365 days a year.
It always amazes me that my employees can cast aside their commitments to my company without a shred of care when it suites them but I would not dare ever delay their payroll. I am there each and every month working against the clock to make sure payroll deadlines are met - my nerves are frazzelled! I only get paid after everyone else - providing cash is available. I take my responsibilities very seriously. I cover all their endless holiday leave whilst mine goes by the wayside. This lady repeatedly crashed her shifts which I had to cover and then she still expected me to be at my desk administering her payroll. She has made demands on my time and energy and seems to expect me to drop every other aspect of my business and return to my desk to sort out her issues. Ooh - you can be assured I'm aware of my responsibilites! They're etched on my face!

No.

You are responsible not my definition for providing a safe and and suitable enviroment for your employees. This involves managing a work roster and if the enviroment is such that cover may be needed at short notice it is incumbant upon you to arrange to have that cover available.

Did you? No.

You are responsible by law to provide your employees with employment contracts.

Did you? No

You are responsible for having a disciplinary procedure in place and ensuring that your employees have access to it.

Going off what you said earlier I take it thats a No and a No.

I could go on but let me remind you of the biggest resposibilty you have.

You hold your employees livelyhood in you hands it's up to you whether the family eats or starves. I know it's unlikely in this instance but the principle remains the same.


Oh and I agree with you in that the employee sounded like a bad one and needed to go but I'm afraid that's all we agree on.

 

[Montaigne]

Annelou the employee sucks but you have generally been lax in your responsibilities as an employer.

You appear to have not provided the employee with a contract, sacked them without a warning, destroyed their payslips then not paid them the holiday entitlement that is their right by law until they have complained about it 5 months later. Regardless of how much of a bad employee she was you should have paid her the holiday she was due when she left, not held it back until she complains!

Too many employers seem to forget what it was like to be an employee i.e. you're not there for fun and no matter how hard you work you'll never see more than your basic in most scenarios. Most employees just do their job and that's it.

You're also listing what you consider to be the bad points of being the employer but not mentioning any of the good points. For example you own the business whereas your staff are on a set wage. If your staff work the best they possibly can they'll still only be paid the same wage whereas you will reap all the benefits.

In this circumstance you should have already have done your research as to what your responsibilities were, at which point you wouldn't have been caught out like this. If you had all the correct paperwork in place and had paid what you were supposed to and when you were supposed to we wouldn't be having this discussion now

It's not all negative though! What I've learned from business is that when I screw up or someone either rips me off or tries to rip me off it makes me a stronger and better business person as the problems that occur highlight the weaknesses in my business; these types of people are helping me by highlighting my business's flaws which only makes my company better in the long run.

It's really hard not to take it personally sometimes but you just have to be clinical in your outlook and behave accordingly.

Also remember that holiday is pro rata. An employee is entitled to 5.6 weeks of paid holiday if they're essentially working a full week. It is less for part time workers. This:

http://www.direct.gov.uk/en/Employment/Employees/Timeoffandholidays/DG_10029788

will explain it in detail for you.

 

[AnneLou]

Podge - I just bet you have a cushy safe job! Paid by somebody else perhaps? I operate a pub/hotel business. Its 24/7, running on a wire and I must be fairly OK at it as I've survived a dreadful trading economy so far. Things have been difficult the last couple of years - not just with trade but with the raft of ever increasing regulations strangling us! I was always a good, understanding boss and regularly put my employees interests before mine. You can bet that I create a safe working environment - my business is regularly inspected by every government department going - I wouldn't dare not!
I have got employment contracts for my staff - just have been lax recently with new starters and yes it has back-fired on me. I've never needed a disciplinary procedure as I haven't upset anyone to be challenged before. May God strike me down for my ineptness!
You are probably the very type of person responsible for some of the mess this country is in. We all should have a responsibility for ourselves. My prime concern is my own family - and why should they be deprived because of someone elses lax attitude. I work absolutely damn hard and as I said in an earlier post - I am just one person. The perils of society should not rest on any employers shoulder.
I approached this forum for some advice regarding my particular situation. I had the sense to know the answer but guess I just needed some sense applying to help me feel better about it. I certainly did not need a damning opinion of the way I run my business.
Oh and by the way - on a monthly basis, some of my employees earn more than me! I take whats left if we have a good year - not much in the last couple!

 

[davidakerr]

AnneLou...............you need to contact the Federation of Small Businesses quickly or you could find yourself facing all sorts of problems now and in the future.

 

[AnneLou]

Thanks Montaigne - you're right about it improving my business. I've spent most of today researching the issues and have now amended my contracts and will be ensuring they are issued to all new staff within a few days of starting.
I will try and be more clinical about it.

 

[Montaigne]

Annelou, speak to your accountant/a solicitor/Citizen's Advice Bureau/Businesslink etc and just find out how much you owe her in holiday pay then contact her through your solicitor explaining you owe her x amount for so many hours worked. Ask that she confirm in writing if she agrees with this and if she does send her a cheque for the outstanding amount.

I'm sure your solicitor can phrase the offer in a way that means that if she accepts the payment that is the end of the matter and you can chalk it up to experience, forget about it and move on

 

[classixuk]

AnneLou,

I was the first to reply to your thread, and I'll be honest, just reading it back I was beginning to wonder if perhaps this was a wind-up or something?

I've changed my mind a bit now though and I've come to the conclusion that you're simply frazzled and burnt out.

It's great that you've expanded your business, but the fact you've moved into an 'admin role' doesn't seem to sit well with you. You appear to be getting mad at people for expecting you to do the admin role effectively, and you seem quite emotional about things too.

Having to do all of that and then see staff walking out with more than you earn in a month must be soul destroying for you.

Perhaps it's time you asked yourself if this is what you went into business for? To work harder than everyone else, receive no holidays and get paid less than they do? You'd have a better quality of life working for someone else...and more free time too.

I hope you don't mind me saying that, I am just thinking that this might be the case.

I agree with the replies of everyone else, and it's great you're going to get the contracts sorted. By the way, it's also law that you have to provide your employees with a payslip. You might want to get some sort of sign off sheet that employees sign when picking up their payslips, or at least have your book-keeper mail the payslips out to your employees.

I'd also recommend you structure some type of induction morning for new employees where you can go through EVERYTHING you expect of them, and what they can expect of you so that you don't run into these problems in future.

Becoming a member of the FSB or BSSA is a great idea. I recently had a HUGE VAT bill reduced to nothing by their legal team for free, as legal advice and tax insurance is often included in the membership.

Finally, I wouldn't have a solicitor write back to this employee confirming her holiday pay etc. as it's just a waste of £100. She knows her legal rights, and you do to. She is owed the money. Your bookeeper will be able to sort this for her and give you the amounts.

Best of luck whatever you decide to do. Tonight though, you need some sleep!

 

[JohnnyCash]

Podge - I just bet you have a cushy safe job! Paid by somebody else perhaps?

He does actually, paid by you - its called Job Seekers Allowance Pay him no attention.

 

[AnneLou]

Thanks for the support Classixuk - I am frazzled! I am also the book-keeper! Have been since we started several years ago - the only thing that I won't calculate is payroll. We use an external company as I have always been scared of mis-calculating someones PAYE and affecting their futue! Getting out is not an option at present - we're stuck with the investment until the market pulls round. We thought that by expanding we could take on more of a management role but that has meant more staff and bigger issues. We're just over a year into our expansion and its been bloody hard. We're not stupid and we took a calculated risk - nobody could fully predict the effects of the recession and we do consider ourselves lucky to be managing to ride it out so far - especially as so many in our industry are going to the wall.
The last quarter has been particularly hard on our nerves - we have been without a manager, the VAT was due just last week and everybody in our team has been taking their holidays or ringing in "sick" on sunny days!

I've just typed the response letter to the ex-employee stating that I will request copies of her payslips when I submit the next payroll to our payroll company along with her request for unpaid holiday pay. I take it that it is not unreasonable of me to set the timescale based on my 4-weekly payroll runs?
Can't go to bed yet - got tills to cash up and next months rota to finish!
Yawn!

 

[AnneLou]

Ooh JohnnyCash you did so make me laugh! There is hope after all! Thank you so much for that.

 

[classixuk]

Thanks for the support Classixuk - I am frazzled! I am also the book-keeper! Have been since we started several years ago - the only thing that I won't calculate is payroll. We use an external company as I have always been scared of mis-calculating someones PAYE and affecting their futue! Getting out is not an option at present - we're stuck with the investment until the market pulls round. We thought that by expanding we could take on more of a management role but that has meant more staff and bigger issues. We're just over a year into our expansion and its been bloody hard. We're not stupid and we took a calculated risk - nobody could fully predict the effects of the recession and we do consider ourselves lucky to be managing to ride it out so far - especially as so many in our industry are going to the wall.
The last quarter has been particularly hard on our nerves - we have been without a manager, the VAT was due just last week and everybody in our team has been taking their holidays or ringing in "sick" on sunny days!

I've just typed the response letter to the ex-employee stating that I will request copies of her payslips when I submit the next payroll to our payroll company along with her request for unpaid holiday pay. I take it that it is not unreasonable of me to set the timescale based on my 4-weekly payroll runs?
Can't go to bed yet - got tills to cash up and next months rota to finish!
Yawn!

"We're all in this together"

It's certainly not unreasonable to inform her in writing that you have received her request querying her holiday pay and also for copy payslips. Informing her that these have been requested from your accountant and should be available to collect from X date would be nice at the end of the letter.

Just don't get emotional.

And finally...some good news for you. If you use an external company to calculate wages etc. they will probably be using something like Sage, which actually calculates any holiday pay owing once an employee' pay is ran for the last time, and it includes any outstanding holiday pay too.

So.....you may have actually already paid this girl without realising it...in which case, all she will have to pick up are her payslips anyway.

Have a good night's sleep.

 

[AnneLou]

Smart thinking Classixuk - have just fired off an email to my payroll company asking the question about holidays. Even if she wasn't paid on this ocassion, perhaps its something that I can use for future leavers - automatic, so that I don't have to think about it, and agonise over. I'm sure it is sage they use. See, I knew this forum would come good!

 

[Arhob1]

Calculate the holiday pay, pay them and issue payslips with a P45. I'm sure you can do without the headache, but the end result will be the same, you will have to pay them no matter what.

I agree with this.

AnneLou - I feel for you. I have been in the same position. Spend 6 days working 24hrs and spend Sunday doing all the PAYE (which is so flipping complicated and they won't accept paper any more etc etc etc).

My employee took me to an Employment Tribunal which the judge kept needlessly postponing so that he "could prepare for another case that afternoon" (why hell didnt he prepaer for his other cases the night before instead of making me incur endless costs). Their case was unpaid holiday and working time and a few other things. All were completely inaccurate as the employee was caliming for hours they hadn't worked which despite my witness statements and other evidence the judge just awarded teh case to the defendant.

Thus my experience is that despite you being in the right AND having good evidence you will still have to pay. ET's in my experience will side with the employee despite the evidence and witness statements you supply.

So AnneLou as a small business owner i would strongly suggest you just pay what they think you owe them. they will think they have "one over on you" and have won and will then leave you alone. Where an ET sides with you you will receive endless threats and vandalism for ever more as that employee will hold a grudge.

So just pay.

 

[classixuk]

I agree with this.

AnneLou - I feel for you. I have been in the same position. Spend 6 days working 24hrs and spend Sunday doing all the PAYE (which is so flipping complicated and they won't accept paper any more etc etc etc).

My employee took me to an Employment Tribunal which the judge kept needlessly postponing so that he "could prepare for another case that afternoon" (why hell didnt he prepaer for his other cases the night before instead of making me incur endless costs). Their case was unpaid holiday and working time and a few other things. All were completely inaccurate as the employee was caliming for hours they hadn't worked which despite my witness statements and other evidence the judge just awarded teh case to the defendant.

Thus my experience is that despite you being in the right AND having good evidence you will still have to pay. ET's in my experience will side with the employee despite the evidence and witness statements you supply.

So AnneLou as a small business owner i would strongly suggest you just pay what they think you owe them. they will think they have "one over on you" and have won and will then leave you alone. Where an ET sides with you you will receive endless threats and vandalism for ever more as that employee will hold a grudge.

So just pay.

Witness statements?

Didn't you have signed time sheets, or perhaps a log-in/log-out system on the main PC? Surely the employee would have queried their hours when their payslip was given to them and suggested there were hours missing?

Totally confused by your post to be honest.

 

[Arhob1]

Yes there were timesheets... falsified ones, hence the witness statements.

Sorry if you're confused. My advice to teh OP is to just calculate what is owed and pay it; don't let it get to a tribunal or any such as it will cost her more.