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Made redundant without notice. No holiday pay, no notice pay, no redundancy pay.

(80 Posts)
Charlieandthechocolatecake Mon 13-Jul-20 22:25:35

I have made a previous thread about this.

www.mumsnet.com/Talk/am_i_being_unreasonable/3949848-Employer-closed-at-shutdown-and-reopened-at-a-different-location

I received some brilliant advice.

I'm now at the stage where I have passed on my mum's previous employer info as well as a breakdown of what we believe she is entitled to.

The nutshell is in the title. I was advised to seek advice from CAB but it's impossible to get hold of anybody sonar this stage we've asked for what's in the title.

That said, mum has never had a contract or payslips throughout her employment. She has paid tax and NI and has P60s as well as a P45.

My AIBU is, am I being unreasonable to think that if mum can't provide absolute proof of what she's owed, if it gets to the employment tribunal stage, she won't have a leg to stand on?

Without payslips or a contract, she can't prove she hasn't been paid annual leave. All she has is 100's of texts between her and her employer.

Ines feeling confident until I read that if it goes to an employment tribunal, mum might have to bear the costs if she loses.

I'm not sure whether we should nip it in the bud or not?

OP’s posts: |
notapizzaeater Wed 26-Aug-20 23:04:00

@Charlieandthechocolatecake did you get this sorted ?

Ringsender2 Sun 16-Aug-20 11:30:36

Good point @notapizzaeater

notapizzaeater Sat 15-Aug-20 00:32:56

If her holiday pay was incorporated then she should would be earning well over min wage. IIRC you can't do that now anyways staff have to have paid holidays.

Charlieandthechocolatecake Sat 15-Aug-20 00:23:41

@Ringsender2 yes! So mum's employer has sent over payslips covering her entire employment. It looks like her holiday pay was incorporated into her monthly pay. I've compared the payslips to mum's bank statements and all adds up.
The ACAS deadline has passed and we are now able to go to tribunal however we can still negotiate a settlement via ACAS.

I have asked for the absolute minimum. Redundancy and notice pay based on 3 years. Mum's employer asked to settle for less bit more than the 2 years she calculated. She also said she was in the process of closing the business and that if we asked for more than what she offered it would be a long time before we got anything (in a nutshell).

I've made a new thread or 2 about this but only got one reply which was great.

What we've asked for doesn't incorporate mum's unfair dismissal. We have no legal representation so I'm hoping the employer will pay what we've asked for. If not, I'll spend my lunchtimes on eBay looking for white wigs grin

OP’s posts: |
Ringsender2 Thu 30-Jul-20 17:07:03

Any updates OP? Hope your mum's ok

LetsBeSensible Tue 14-Jul-20 23:15:03

@Charlieandthechocolatecake please get her to check with HMRC if she is “on furlough” for that employer.
If they’re using her name/details then HMRC will disclose the info to her....

LetsBeSensible Tue 14-Jul-20 23:11:39

@VanGoghsDog 3 months- 1 day is to submit from the date of the event (I.e dismissal)
The minimum time to submit after early conciliation is 1 month- 1 day, it could be longer but in the absence of a timeline I’m quoting the minimum so she dosn’t miss out.
@Charlieandthechocolatecake just keep ploughing ahead with the here and now, the ET is backed up and has been for a few years. Can take a good 6 months to a year to get a hearing.

Right now work out what she’s owed in ££££ and why, and prep the form. There’s a lot of poker playing in this game, acting daft, last minute change of mind. Just stay strong on the minimum £ you want. And does she want an agreed reference from them?

RedRumTheHorse Tue 14-Jul-20 21:09:17

CuntyMcBollocks

I went through a similar thing a couple of years ago. My ex employer embezzled millions from his staff, provided fake wage slips, never paid staff on time or properly. He told the IRS that some staff were working part time but making their fake wages slips appear as if they were full time so he could keep the money himself. A woman and her children became homeless as she wasn't paid and couldn't pay her mortgage. It went through the court but took years for anything to even be acknowledged. Some people got paid (those who had wage slips etc as proof that they worked there) but I was one of the unlucky ones who received nothing as I'd only worked there for a few months and never recieved my wage slips, even though I'd worked loads of extra hours etc and should have recieved nearly £2000.

I hope your mum does get what she's entitled to, but just be wary that without proof it's so much more difficult. We had a lawyer working with us for a couple of years and it took him so long to even get the people/companies who should have been helping us straight away to do anything.

In the UK we have HMRC not the IRS.

Also depending on how the employer has set themselves up and/or the criteria you are making your claim on you may be able to make your claim against an individual.

CuntyMcBollocks Tue 14-Jul-20 16:15:26

I went through a similar thing a couple of years ago. My ex employer embezzled millions from his staff, provided fake wage slips, never paid staff on time or properly. He told the IRS that some staff were working part time but making their fake wages slips appear as if they were full time so he could keep the money himself. A woman and her children became homeless as she wasn't paid and couldn't pay her mortgage. It went through the court but took years for anything to even be acknowledged. Some people got paid (those who had wage slips etc as proof that they worked there) but I was one of the unlucky ones who received nothing as I'd only worked there for a few months and never recieved my wage slips, even though I'd worked loads of extra hours etc and should have recieved nearly £2000.

I hope your mum does get what she's entitled to, but just be wary that without proof it's so much more difficult. We had a lawyer working with us for a couple of years and it took him so long to even get the people/companies who should have been helping us straight away to do anything.

BarbaraofSeville Tue 14-Jul-20 16:14:50

She's always been paid MW. Its just that she's never been paid for all the hours she worked

Surely that means she hasn't been paid MW?

Say she's paid £120 a week gross. If she works more than 14.5 hours to earn that money, then the rate per hour is below the NMW (for £8.21 NMW, obviously if it's above that now, it's even fewer hours).

You can't just say 'we want you to work 20 hours, but we're going to pretend you only worked 15 so we can claim you earned NMW.

There's also the holiday entitlement - over a year to receive that £120 pw, you should only have to work about 46/47 weeks per year, because some of it would be paid as holiday entitlement. It gets complicated with PT workers who may or may not work on bank holidays etc, but as an absolute minimum, she should have the pro rata of 28 days leave per year.

If she works 5 short days per week, that equates to 28 of her short days off per year paid. If she works 3 longer days per week, she still gets 5.6 weeks but that would only be about 17 days per year, but it still works out at the 5.6 weeks or 4 weeks plus BHs if they close every BH and she would normally work that day.

I would use these text messages to make up a spreadsheet to show the difference between what she was actually paid and what she should have been paid at NMW x all the hours she worked, plus missing holiday entitlement, to show what the shortfall is. I also believe that she should be entitled to some redundancy if she worked more than 2 years.

She should also set up a government gateway account, because if you look in there, you can see what's been reported (or not) in terms of pay and tax/NI contributions. However, if it was PT NMW work, she could well have been below the tax threshold but might have needed to pay some NI, she can also check where she is with her state pension in there too.

VanGoghsDog Tue 14-Jul-20 15:40:17

RedRumTheHorse

*@imamum21* and OP this is the site - www.gov.uk/employment-tribunal-decisions

I found it because I always check out companies I do work for.

How exciting, my name is on one of those (I won for my client).

RedRumTheHorse Tue 14-Jul-20 13:57:22

@imamum21 and OP this is the site - www.gov.uk/employment-tribunal-decisions

I found it because I always check out companies I do work for.

Mysa74 Tue 14-Jul-20 12:57:37

Charlieandthechocolatecake

*@Comefromaway* thank you. I've got her most recent P60 and her gross pay for the last financial year is a few thousand below what it should have been. My calculations show she was paid £6 per hour and that's without including holiday pay.

£6 per hour doesn't sound good OP, minimum wage for year ending march 2020 was £8.20... that must work in your favour surely?

TheFaerieQueene Tue 14-Jul-20 09:59:09

I would bet that a tribunal is the last thing these employers want. Keep pushing.

CayrolBaaaskin Tue 14-Jul-20 09:55:37

It’s very rare for employment tribunals to award costs against a losing party, so j in wouldn’t worry about that.

Rosspoldarkssaddle Tue 14-Jul-20 01:12:00

How.can you make someone redundant when their position is still required albeit at a different address in the same town? You can't employ someone else to do your mum's job within 6 months. There should be a consultation, redundancy pay, accrued holiday pay etc. Paying less than minimum wage? It gets better. Over £10k per annum? Should have been automatically enrolled into a pension. She also should have received a statutory letter confirming a) their staging date. B) her status c) what her options are re auto enrolment pension, even if she didn't qualify. This is a legal requirement. On her p60, there will be an employer paye reference. Go to thepensionsregulator.gov.uk and read up on employer obligations. You can also look up their staging date from this site using that number.
Are you sure the p60 is legit? Worth checking they have actually paid across her NI if eligible so apply for a ni statement online. That will tell you.
Also, you need to make a note of those texts re hours versus payment made, dates worked, date paid. Match to p60 for 6/4/2017 to 5/4/2018, 6/4/2018 to 5/4/2019, 06/4/2019 to 5/4/2020.
So potentially you have;
No payslip
No consultation for redundancy
Possible illegal redundancy
No contract
No holiday pay
No statutory auto enrolment letter
Possible under stated wages versus p60.
If she has not been paid and has been off since.lockdown, check furlough status with HMRC.

VanGoghsDog Tue 14-Jul-20 00:37:12

The ET claim has to go in within three months, minus a day.

If Early Conciliation starts the clock stops for a month. BUT it's really not as simple as EC plus a month. It's always best to get the claim in within the three months minus a day from the event (the dismissal in this case). Even if EC is ongoing. Just get the form in.

And, to be clear OP, YOU (/your mum) do that, not ACAS. I recently won an out of time case against an ex employee who had (allegedly) misunderstood the situation with dates/ACAS/who submits the form etc. The judge at the pre hearing was not sympathetic to the claims of not being told or not knowing that the ex employee made. Other than some very unusual exceptions, the deadline is a hard stop.

So rather than get confused with EC etc, just get the claim form in. It can always be withdrawn if there is a settlement.

VanGoghsDog Tue 14-Jul-20 00:30:27

Charlieandthechocolatecake

*@Justaboy* definitely properly employed by the company itself!

@ostinato that is VERY interesting. I'll do some research although I can imagine there may be some restrictions. Either way, I'll search for some transcripts to give me a heads up😁

Employment tribunal transcripts are not available online, they only start at the EAT, appeal tribunal, stage

VanGoghsDog Tue 14-Jul-20 00:26:28

LetsBeSensible

*@Charlieandthechocolatecake* the early conciliation might not resolve it at this stage but conciliation can happen again after a claim.
Just get prepared for if you need to fill out the ET form after conciliation ends as you will only have a month -1 day.
I’d pay your mum a few grand to go away with a claim like hers!!!!

It's three months minus a day, not one month.

(In fact, it might be six for redundancy pay, but best not complicate things!)

VanGoghsDog Tue 14-Jul-20 00:23:45

Charlieandthechocolatecake

Some of you guys have recommended ACAS. We're in the process already. I have already sent mum's conciliator a breakdown of what we believe is owed which they will pass on to her ex employer.

My main concern is that they will reject it and it will end up at tribunal where neither mum nor I can afford legal representation.

You don't need legal representation, you just go along yourself. It's a people's court.

Comefromaway Tue 14-Jul-20 00:22:10

Justaboy

Was she propeley employed by a company or was she just working for someone and was supposed to be self employed?

Cant think for the life of me any employer wants a tribuanl!!

Working in a cafe is very unlikely to be seen as self employed by an employment tribunal.

notapizzaeater Tue 14-Jul-20 00:21:22

If her hourly rate ends up less than minimum wage working the extra unpaid hours, then she does have a claim for MW.

JassyRadlett Tue 14-Jul-20 00:21:19

While you’re on the phone to HMRC mention the underpayment of minimum wage. They are the enforcement body for the national minimum wage.

Or a complaint can be lodged here

areallthenamesusedup Tue 14-Jul-20 00:12:40

Charlieandthechocolatecake

I didn't say you couldn't wear a wig, just that you didn't have to!

Charlieandthechocolatecake Tue 14-Jul-20 00:02:05

@Justaboy definitely properly employed by the company itself!

@ostinato that is VERY interesting. I'll do some research although I can imagine there may be some restrictions. Either way, I'll search for some transcripts to give me a heads up😁

OP’s posts: |

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