Question re Leaving Employment

Discussion in 'Employment & HR' started by Joe E, Jul 29, 2018.

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  1. Joe E

    Joe E UKBF Enthusiast

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    Hello

    My son is due to leave his employment at the end of August this is a 'mutual decision' however I want to be sure that he leaves with whatever he is legally entitled to.

    The reason I ask is historically I do not trust his employer to get things right!

    Firstly in the 4 years he's worked there he has never seen, signed or been provided with a written contract of employment despite asking on numerous occasions.
    For the 4 years he hasn't received all his P60's including this last years and he only gets the odd payslip here and there.

    Secondly the reason he is leaving is because he asked his boss whether he could have his pay increased to the min wage for 21 year old or cut his hours to bring the pay up in effect but his boss refused to do either so therefore he has decided to leave, his boss agreed.

    His boss then told him he will let him leave once he has found a replacement which he now has so August end is when he will leave.

    So really my question is multiple, is he entitled to see and have a copy of his contract? (if it even exists), will his leaving be classed as a sacking even though there has been no misconduct? or a redundancy even though the job has been refilled?

    And would he be able to claim his rightful hourly rate since he turned 21 last autumn.

    Any advice would be great, I understand it may not be possible as I find it bit of an odd situation.
     
    Posted: Jul 29, 2018 By: Joe E Member since: Oct 24, 2007
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  2. Newchodge

    Newchodge UKBF Legend

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    If he hasn't been paid NMW he can sue them for it - employment tribunal is best. If he has left because he hasn't been paid NMW he can also claim unfair (constructive) dismissal.
     
    Posted: Jul 29, 2018 By: Newchodge Member since: Nov 8, 2012
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  3. Newchodge

    Newchodge UKBF Legend

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    You have a very weird concept of the employment relationship. His boss agreed he could leave? How could he have stopped him?
     
    Posted: Jul 29, 2018 By: Newchodge Member since: Nov 8, 2012
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  4. Joe E

    Joe E UKBF Enthusiast

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    Thanks Cyndy, yes his boss agreed but the reason as I see it although I cant prove it is he agreed because he doesn't want to pay him his entitled rate for his age, so can let him go and therefore replacing him with a younger person.
     
    Posted: Jul 29, 2018 By: Joe E Member since: Oct 24, 2007
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  5. kulture

    kulture Moderator
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    I would suggest that you go talk to an employment lawyer as there may well be other material failures in this employment. For example has he been paid holiday pay? You say he has not been paid the national minimum wage, how long has this happened? What is his hourly rate?
     
    Posted: Jul 29, 2018 By: kulture Member since: Aug 11, 2007
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  6. Chris Ashdown

    Chris Ashdown UKBF Legend

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    You need to sit down and phone one of the HR experts on this forum for a private call and as Cyndy has been the first to respond i would suggest her
     
    Posted: Jul 30, 2018 By: Chris Ashdown Member since: Dec 7, 2003
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  7. Newchodge

    Newchodge UKBF Legend

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    ^^ What @kulture said ++. There are bound to be other things he has not been paid properly for. a cheating employer tends to cheat about everything, not just one area. he also ought to get onto HMRC and make sure his tax/NI contributions have been passed on.
     
    Posted: Jul 30, 2018 By: Newchodge Member since: Nov 8, 2012
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  8. Joe E

    Joe E UKBF Enthusiast

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    Thanks guys for your replies, @kulture he doesn't have an hourly rate he gets paid £65 per day straight regardless of how many hours he works. He starts work at 7am he is shop based which closes at 5:30 however due to the nature of work he would rarely finish before 6pm sometimes could be 7pm before he would leave. Also there is no break structure, he may get 30 mins sometime might be 15 depending how the days going.
    He turned 21 last September and until March this year he was being paid as above, however since April of this year i.e new tax year I think he may have had slight increase but still doesn't equate to NMW (21-24) but as we haven't seen any payslips since its difficult to 100% accurate.

    Cyndy regarding the other issue of obtaining his Contract of Employment how would suggest we approach this now? Given he has asked for numerous times over the years without success.
    Also as you suggested employment tribunal may be an absolute solution to this situation however I want to first explore having dialogue with his boss as I'm pretty certain his boss is the type of person that if confronted with someone with informed information and can assert themselves with a robust argument to get these issues sorted out without going down the official legal road then he would take it. If you see what I mean
     
    Posted: Jul 30, 2018 By: Joe E Member since: Oct 24, 2007
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  9. Newchodge

    Newchodge UKBF Legend

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    OK I wouldn't bother with the contract of employment, it's irrelevant now but it can be included in an ET claim. Through HMRC he can access his personal tax record and see how much income, tax and NI has been declared. Match that to the payments received. Was it cash in hand or bank transfer?

    However, 11 hours @ current NMW for his age (7.38) is £81.18, which he should have been getting since 1 April this year. He was also supposed to get at least a 20 minute uninterrupted break, that he knew would be uninterrupted when he started it. That break may or may not be unpaid. Before he was 18 that break should have been 30 minutes. Then there is 5.6 weeks' paid holiday. Prior to turning 21 he was probably getting NMW - I calculate it at £61.60 for 11 hours last year.

    Once he has finished he has 3 months to get ACAS involved in compulsory conciliation and then a further month to get any claim in, so don't delay in the hope of getting a settlement.
     
    Posted: Jul 30, 2018 By: Newchodge Member since: Nov 8, 2012
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  10. MikeJ

    MikeJ UKBF Legend

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    I assume that £65 was net, not gross, so it may not be far off NMW depending on how many days he worked, and what other income he had.
     
    Posted: Jul 30, 2018 By: MikeJ Member since: Jan 15, 2008
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  11. Mr D

    Mr D UKBF Legend

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    If he's doing it to one its quite possible he's been doing it to others. Possibly even for some time.
     
    Posted: Jul 30, 2018 By: Mr D Member since: Feb 12, 2017
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  12. Joe E

    Joe E UKBF Enthusiast

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    Thanks Cyndy, that's really good detailed advice much obliged to you.

    MikeJ although not 100% sure because lack of payslips but we understand that it's gross not net and he has no other income, thanks for responding.

    MrD Quite possibly but have no proof of that, thanks for your input also.
     
    Posted: Jul 30, 2018 By: Joe E Member since: Oct 24, 2007
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  13. DontAsk

    DontAsk UKBF Legend

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    How does that work? Just give a weeks notice and then tell the boss to do one.
     
    Posted: Jul 30, 2018 By: DontAsk Member since: Jan 7, 2015
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  14. Mr D

    Mr D UKBF Legend

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    Or the more informal - I quit - and walk out the door. Wouldn't recommend it unless necessary.
    Sometimes necessary.
     
    Posted: Jul 30, 2018 By: Mr D Member since: Feb 12, 2017
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