Unreasonable employer - advice needed

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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
 
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JeffreyMills

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Sep 29, 2018
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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!
 
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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
 
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awkwardflower

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Feb 17, 2019
40
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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?
 
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Newchodge

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Nov 8, 2012
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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.
 
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awkwardflower

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Feb 17, 2019
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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...?
 
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awkwardflower

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Feb 17, 2019
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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?
 
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awkwardflower

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Feb 17, 2019
40
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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.
 
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Newchodge

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Nov 8, 2012
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^ 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.
 
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SteveHa

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Jun 16, 2016
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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.
 
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awkwardflower

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Feb 17, 2019
40
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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!
 
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awkwardflower

Free Member
Feb 17, 2019
40
4
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.
 
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awkwardflower

Free Member
Feb 17, 2019
40
4
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.
 
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Newchodge

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Nov 8, 2012
16,221
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Newcastle
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.
 
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awkwardflower

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Feb 17, 2019
40
4
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.
 
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