Missing P60 and not been paid.(11 Posts)
I'm currently going through the process of trying to part company with my employer. Long back story.
I'm having trouble with him acknowledging my (unwilling) resignation. The company is only a small company. There is no HR, no union to go to. Just my boss. To cut a long story short, I've sort legal advice and I have been told I have a good case for constructive dismissal path over his behaviour but due to anxiety and stress (which I have been to the doctor over), and the fact that I am very aware of the financial state of the company and I'm fearful of it going bust leaving us with a nasty legal bill. So its not really a route I want to go down as I don't earn much and I'm more likely to end up out of pocket. At this point I'd rather just walk away, and right off what I'm owed if I really have to (should be 4 weeks stat sick pay minimum though had holiday left and we have to take it over christmas for company shut down). Not ideal but it seems at this point to be the better option and I'm pretty resigned to it.
But I do have a much bigger concern.
I've now asked three times for my P60 and pay slips from last year. They've still not turned up. I am aware that my boss was behind with payments to HMCR so I'm starting to grow very concerned about this, not least because he's currently (and I believe illegally) withholding my last pay cheque. I've always been paid on the last friday before christmas, but thats at my boss's discretion so I let it go begrudgingly. Its technically due on the last friday of the month (so now 12 days late). He emailed me on the first monday of this month (AFTER I was supposed to have been paid) telling me he had withheld my pay. We've managed to deal with it financially, no thanks to him, but its been an 'inconvenience' to say the very least.
I'm now seriously concerned about why he has done this and worried about my NI situation. And since I've also not been given pay slips I've also no way to prove this. I do know my wages have gone through the books, so I know I've technically been paid above board.
I've worked for this guy for 10 years and never really thought to chase him up about him being slack with pay slips as we'd worked on trust and I'd always been paid without any problems. (Not to mention he has been a right arse when I have asked in the past, so didn't want to deal with his attitude). With the benefit of hindsight I'm seeing this as very foolish but theres not a lot I can do about it now. Again I'm wondered about what happens if the company goes bang in this situation. Would I loose 18 months worth of NI contributions because he's failed to make his PAYE payments?
I believe I can raise missing P60 questions with the tax office, but I know you are supposed to contact your employer first and I'm about worried going to the tax office in case this leaves me high and dry too (HMRC did threaten boss with a winding up order at one point last year). Not to mention I've no idea what a reasonable amount of time for him to respond is.
Has anyone any idea about how I stand with this NI situation so I can get at least an idea of what I'm dealing with now? Although I'm aware the CAB or another trip to see a solicitor are probably going to be my way forward, the prospect of doing that is extremely distressing at the moment, especially since I know how long it is to even get an appointment with either. I can't sleep as this is giving me nightmares and everything has been going on since mid November. I just want a proper resolution now, so I can get on with my life.
I feel between a rock and a hard place, and acutely aware that even though the law seems to be technically on my side, the reality of the situation doesn't actually seem to favour me due to the nature of the situation. I feel like I'm getting nowhere at all.
I had an appointment with the CAB yesterday as my employer is withholding payslips and my SMP1 form. They were extremely helpful and were back in touch this morning with some solutions. The first being that I needed to send a letter recorded delivery requesting all the documents, and if the letter hasn't been acknowledged within a week (and no documents within 2) then to report them to HMRC who will look into it and possibly fine them. Lastly, and if that all hasn't kicked him up the arse then to think about a tribunal.
Get onto the CAB as soon as you can, they're brilliant.
It is your P45 that you need when you leave employment - the P60 shows the tax and NI deductions made over a full tax year.
I would call HMRC to enquire about the NI situation, in theory, if he has kept up with his paperwork for payroll, then at the end of the tax year he will send off the relevant information to HMRC regarding your deductions and contributions. The fact that he is behind on payments to HMRC isn't necessarily an issue.
I would put a formal request in to your boss in writing, requesting copies by x date, and if you don't get them then contact HMRC to discuss the options. It is unlikely that you will suffer if you have evidence of the amounts paid to you (eg bank statements) and your annual salary (eg a salary letter or contract) so they can see that deductions have been made before payments sent to you.
This is the problem. I technically do not have a contract or salary letter. (Don't ask...). Plus I've been on varying hours per week for the last couple of years (Again don't ask... basically what it come down to is my boss has bullied me and taking the piss out of me for years which I didn't fully realise and appreciate until everything has come to a head).
I know I also need a P45. But its the P60 thats concerning me, because I haven't been paid and I think this might be the reason why.
The P60 is only produced at the end of the tax year, so do you mean last year's P60? Legally, this should have been given to you by 19th July.
Does your employer do the payroll himself, or does he use an accountant, do you know? If he uses an accountant, they might be able to help you, but HMRC should have received the P35 annual return from your boss and will have chased him up if he is registered as an employer and hadn't filed the year end reports.
If your employer is refusing to give you the information after sending a formal request in writing, then HMRC needs to be your next step really. Have you ever had any payslips or P60's?
Last year's. Not this years.
He gets a bookkeeper to do payroll. And then has a accountant do the year end (which I know he was late doing, and I'm not sure if he has done yet tbh).
I've had P60s and payslips in the past, but I don't think I've had anything since the start of 2011.
Ok, well that's a good start then - if you have them from previous years, then it shows that you have no reason to suspect that your PAYE & NIC weren't being paid across to HMRC.
Can you contact the book keeper to see if they have a copy of your P60? They may be able to print you something off from their system, at least to track your net pay and deductions.
It's no help to you but a new system coming in called Real Time Information will mean that employers have to file returns every time an employee is paid. One of the reasons it is being brought in is to stop employers not filing things until months later if at all.
I could contact the bookkeeper, but from the look of my last email from my boss it looks like he's already spoken to them about my situation and I know the relationship well enough to know that they are unlikely to do anything but refer me back to him (not least because they are almost certainly owed at least 3 months money by him too).
Ok, well HMRC needs to be your next port of call then. Just make sure that you have written back up of your requests for info from your boss (and his response if you have it), will just help your case if any problems, but HMRC should be able to help you, at least up to the end of last tax year. Your boss won't have filed any info with HMRC this year as yet.
My worry is, that if I do that, I'll definitely have no chance of getting the pay I'm owed back. As given the state of things I wouldn't be surprised if he just phoenixed the company thus getting out of it, and any subsequent fines anyway. So I need to make a final decision one way or another about whether I go down the route of trying to get my money back/employment tribunal before I go to HMRC.
If was a criminal prosecution, rather than just a fine it might be a better threat to use but in this situation I don't think it will make much of a difference to him.
I've still not heard from him today. Which hasn't surprised me, but is frustrating. It just reinforces my concern that the company is virtually insolvent and he can't actually pay me at all.
And I think I'd be put at the bottom of the list of who he would pay off in an insolvency situation given his attitude. Everything he's done so far has been to the exact letter I predicted; even down to the stupidity of his letters which leave him wide open for a case against him.
Thanks for the advice. Its at least somewhat reassuring that I SHOULD have had my NI paid.
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