Employment Problems
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I'm after a bit of advise on where to start with a problem a friend of mine is having. He's pretty upset and angry about the whole thing, so would like to offer some constructive advice but don't know where to start,so anyone who genuinly works in employment law who can offer some advice, I and he would be extrememly grateful.
A bit of background my friend (I'll call him Sam) has worked in a restaurant for four years. It's a small, family run business and I can honestly say that Sam loved the job and put a frankly ridiculous amount of effort and enthisuams into his work there (I have eaten there myself a number of times). Sam as a character is a genuine stand up guy. Nicest, kindest, friendiest person you could hope to meet.
A few months ago the owners at the restaurant become concerned over money going missing from the till over a period of time. No one has any evidence of who it was, and no one pointed the finger directly at Sam. I can catagorically say that Sam would not have done this. According to Sam things got a bit weird at work and it became a much less enjoyable place to work.
With this in consideration, as well as the fact that he has just started a graduate scheme at a large company after completing his degree he left.
Today he went in to pick up his final pay check (less than £500), with a bunch of flowers to say thanks for the 4 years of employment (like I said, a great guy), and inside was the slip saying £xxx paid in cash, but with no money. He questioned the owner who basically gave the line on "you've had enough already" accused him of doing the steeling and slammed the door in his face.
So Sam is money down, will have no refence from a job he has put heart and sole into for four years and is left with a very sour taste in his mouth.
Where should Sam go from here? In terms of getting his final pay check, and generally doing what is right out of principal.
If anyone in the know thinks that my posting this here could in anyway be damaging to future events within this, please say so and I'll get it removed ASAP.
A bit of background my friend (I'll call him Sam) has worked in a restaurant for four years. It's a small, family run business and I can honestly say that Sam loved the job and put a frankly ridiculous amount of effort and enthisuams into his work there (I have eaten there myself a number of times). Sam as a character is a genuine stand up guy. Nicest, kindest, friendiest person you could hope to meet.
A few months ago the owners at the restaurant become concerned over money going missing from the till over a period of time. No one has any evidence of who it was, and no one pointed the finger directly at Sam. I can catagorically say that Sam would not have done this. According to Sam things got a bit weird at work and it became a much less enjoyable place to work.
With this in consideration, as well as the fact that he has just started a graduate scheme at a large company after completing his degree he left.
Today he went in to pick up his final pay check (less than £500), with a bunch of flowers to say thanks for the 4 years of employment (like I said, a great guy), and inside was the slip saying £xxx paid in cash, but with no money. He questioned the owner who basically gave the line on "you've had enough already" accused him of doing the steeling and slammed the door in his face.
So Sam is money down, will have no refence from a job he has put heart and sole into for four years and is left with a very sour taste in his mouth.
Where should Sam go from here? In terms of getting his final pay check, and generally doing what is right out of principal.
If anyone in the know thinks that my posting this here could in anyway be damaging to future events within this, please say so and I'll get it removed ASAP.
He should write to the former employer and give them 14 days to pay up or he will take them to an Employment Tribunal.
https://www.gov.uk/employment-tribunals/taking-a-c...
http://www.justice.gov.uk/tribunals/employment
https://www.gov.uk/employment-tribunals/taking-a-c...
http://www.justice.gov.uk/tribunals/employment
Edited by PurpleMoonlight on Monday 26th August 13:00
I'm sure someone like BreadVan72 will be along soon with sound words of advice, but in the interim I'd suggest he goes to the CAB and calls ACAS.
From a non-solictor view, he sounds like he has a case and has a number of routes to recover his owed funds - as they have failed to make any kind of case, disciplinary process or otherwise prior to this action.
From a non-solictor view, he sounds like he has a case and has a number of routes to recover his owed funds - as they have failed to make any kind of case, disciplinary process or otherwise prior to this action.
TheBALDpuma said:
Where should Sam go from here? In terms of getting his final pay check, and generally doing what is right out of principle.
If anyone in the know thinks that my posting this here could in anyway be damaging to future events within this, please say so and I'll get it removed ASAP.
Principle or Principal ? Not relevant but hey......If anyone in the know thinks that my posting this here could in anyway be damaging to future events within this, please say so and I'll get it removed ASAP.
I definitely think posting here is a good idea. You'll have a top London Barrister (not barista) on later to confirm that they can not withhold pay, without proof.
I would have thought that it's illegal under the minimum wage legislation too.
All the top London barristers are on their hols. Meanwhile.... deduction from wages is indeed unlawful, absent the prior written agreement of the employee. As noted above, the employer may deny that the envelope was empty, so there could be a swearing contest. The employee could sue in the County Court, or in an Employment Tribunal. The latter are more accustomed to the behaviour of dodgy employers and would be the better bet.
It will cost Sam £160 to make a claim in the Employment Tribunal. He must do so within three months of being paid. If his ex-employer does not settle and the case goes to a hearing he will have to pay a further £130. If successful he can ask the Tribunal to order the ex-employer to pay these fees.
The cost of using the County Court is around 50% of the ET fees but there is the risk of a counterclaim in that Court (not possible in the ET) and as noted the CC is less familiar with these types of claim.
The ET cannot order a reference but Sam may be able to negotiate one as part of a settlement.
The cost of using the County Court is around 50% of the ET fees but there is the risk of a counterclaim in that Court (not possible in the ET) and as noted the CC is less familiar with these types of claim.
The ET cannot order a reference but Sam may be able to negotiate one as part of a settlement.
Quite aside from the financial aspect , bad enough though it is , the accusation of theft followed by this unauthorised sanction , going by your account without any proper investigation or evidence , amounts to a form of character assassination which , if not strictly defamation is in some manner defamatory and perhaps actionable in some way ?
I would be more concerned about the loss of his good name and the potential adverse effect on future employment prospects than the loss of £500 , bad enough as that may be .
I would be more concerned about the loss of his good name and the potential adverse effect on future employment prospects than the loss of £500 , bad enough as that may be .
Zeeky said:
The ET cannot order a reference but Sam may be able to negotiate one as part of a settlement.
And if not, write to them right now and suggest that his duty to mitigate his losses would be hampered by any such reference so invite them to agree to a standard reference i.e. Mr (Friend) was employed as (Role) between start and end of employment.Jasandjules said:
And if not, write to them right now and suggest that his duty to mitigate his losses would be hampered by any such reference so invite them to agree to a standard reference i.e. Mr (Friend) was employed as (Role) between start and end of employment.
It is very easy for an employer to use that to your detriment - "Our agreement with this former employee states that the only reference we are able to give is....." better not to have a reference than that.The compromise agreement can include an agreement not to disclose the fact that the parties have come to an agreement in addition to the content of the agreement itself.
The OP has no losses to mitigate unless he is claiming unfair dismissal which, in this case, would require him to prove that he was 'constructively dismissed'. That appears unlikely on the face of it unless the 'weirdness' at work was a symptom of a lack of trust between Sam and his ex-employer and Sam stated around the time of resigning that this was the reason.
The OP has no losses to mitigate unless he is claiming unfair dismissal which, in this case, would require him to prove that he was 'constructively dismissed'. That appears unlikely on the face of it unless the 'weirdness' at work was a symptom of a lack of trust between Sam and his ex-employer and Sam stated around the time of resigning that this was the reason.
Zeeky said:
The compromise agreement can include an agreement not to disclose the fact that the parties have come to an agreement in addition to the content of the agreement itself.
Sure, but you don't have to reveal that there is a compromise agreement in order to give the impression that something happened. It doesn't need to be as blatant as the wording I used.Zeeky said:
The OP has no losses to mitigate unless he is claiming unfair dismissal which, in this case, would require him to prove that he was 'constructively dismissed'. That appears unlikely on the face of it unless the 'weirdness' at work was a symptom of a lack of trust between Sam and his ex-employer and Sam stated around the time of resigning that this was the reason.
In reality there's not a lot he can do.Constructive dismissal is going nowhere, not least because he left to do something else.
The employer will no doubt say that the cash was in the envelope, they'll point to the flowers etc. and deny any thought that the theft was him. One person's word against the other.
Zeeky said:
How would you word the reference to disclose that the reference is agreed without breaching your agreement not to disclose this fact?
A lot of ET decisions turn on one side's witness evidence being accepted over the other's.
The whole point of an agreed ref in the comp agreement is so there is no ref to any action. It is a template and that needs to be done is change who the addressee is, the date, and sign it.A lot of ET decisions turn on one side's witness evidence being accepted over the other's.
Zeeky said:
How would you word the reference to disclose that the reference is agreed without breaching your agreement not to disclose this fact?
Well it depends on what the compromise agreement actually says and how close to the wind you want to go. You could return a request to the prospective employer saying something like "please find attached the reference that we provide on request for this former employee". It says nothing about it being agreed whilst making it fairly obvious that it is.Zeeky said:
A lot of ET decisions turn on one side's witness evidence being accepted over the other's.
They do but in the context of constructive dismissal, for example, they really don't fit the criteria. If it had been a storm out having been accused of theft scenario, then OK, but not this.If it's not constructive but just trying to recover the money the issue is showing it wasn't paid, if the employer can show from their bank account that they withdrew the cash, the payslip says 'here's the cash', the employee was given flowers, no doubt they can whistle up a witness that they put the cash in the payslip.... Factor in that it costs a bit to go to ET now and I'd say they aren't going anywhere with it.
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