How do I protect myself when resigning
Discussion
I will try and keep it as simple as I can
Worked within a small business for just over 2 years
ONLY thing that was ever agreed was salary and pay date - I have never had a contract of employment
First 15 months I was paid on the 24th or the last working day before the 24th
The last 9 months I have been paid between 2- 6 days late (can prove this via bank statements), never told, explained or apologised about
I sent her an email on 20th Nov requesting that I be paid on time(24th) as I had to pay the balance for a trip to Lapland with my son (wanted to treat him as I have had major marriage problems this year that have been tough on him). I received a response on the 23rd advising that I would be paid on 27th, again, no apology, explanation or offer of part payment - my salary was not paid and this morning got a message after I ha chased saying she had paid me this morning so should show in my account today or Monday - so far nothing has arrived
Got to the point several months ago where I have been forced to look elsewhere for another job - I was happy with this job - only issue was late payment of salary which has caused a lot of worry / concern and bank charges for authorised overdraft (which would not have been needed if I was paid on time)
I have just received the offer of a new job and they wish me to start on 1st Jan
I am owed expenses dating back to September - I have not yet been paid this month (so currently 4 days late) - I will default on my mortgagee on Monday
How do I handle this - all I want is to be paid what I'm owed, as I have no contract I believe I only have to give 2 weeks notice - she is likely to dismiss me on Tuesday as I have been quite vocal (but truthful) about non-payment of salary - I believe she would only have to pay me 2 weeks
In a perfect world Id like to get paid until the end of Dec, happily work until the end of Dec
Any guidance greatly appreciated
Worked within a small business for just over 2 years
ONLY thing that was ever agreed was salary and pay date - I have never had a contract of employment
First 15 months I was paid on the 24th or the last working day before the 24th
The last 9 months I have been paid between 2- 6 days late (can prove this via bank statements), never told, explained or apologised about
I sent her an email on 20th Nov requesting that I be paid on time(24th) as I had to pay the balance for a trip to Lapland with my son (wanted to treat him as I have had major marriage problems this year that have been tough on him). I received a response on the 23rd advising that I would be paid on 27th, again, no apology, explanation or offer of part payment - my salary was not paid and this morning got a message after I ha chased saying she had paid me this morning so should show in my account today or Monday - so far nothing has arrived
Got to the point several months ago where I have been forced to look elsewhere for another job - I was happy with this job - only issue was late payment of salary which has caused a lot of worry / concern and bank charges for authorised overdraft (which would not have been needed if I was paid on time)
I have just received the offer of a new job and they wish me to start on 1st Jan
I am owed expenses dating back to September - I have not yet been paid this month (so currently 4 days late) - I will default on my mortgagee on Monday
How do I handle this - all I want is to be paid what I'm owed, as I have no contract I believe I only have to give 2 weeks notice - she is likely to dismiss me on Tuesday as I have been quite vocal (but truthful) about non-payment of salary - I believe she would only have to pay me 2 weeks
In a perfect world Id like to get paid until the end of Dec, happily work until the end of Dec
Any guidance greatly appreciated
Edited by Andy665 on Saturday 28th November 20:13
If it were me: I'd keep things professional, record and store all correspondence and see what happened on Monday.
Assuming I got paid, I'd resign immediately and negotiate the shortest notice period I could in order to move on and get in to my new role. Any loose ends/bits of owed salary I'd try and resolve but would accept that there may be some loss that I would just have to absorb and move on. Good luck!
Assuming I got paid, I'd resign immediately and negotiate the shortest notice period I could in order to move on and get in to my new role. Any loose ends/bits of owed salary I'd try and resolve but would accept that there may be some loss that I would just have to absorb and move on. Good luck!
If you had an agreed pay date, then you had a contract. If they aren't paying you when they are supposed to, that's a material breach of the contract, which you have pointed out to them.
To my mind that means you can just walk off the job with no notice (since their breach was first). Check that with someone lawyerly though, as it's something that's important to get right.
To my mind that means you can just walk off the job with no notice (since their breach was first). Check that with someone lawyerly though, as it's something that's important to get right.
Hello again OP. Have you started a second thread about the same situation (but adding some stuff that you didn't mention first time around) because you didn't like the answers that you received on the other thread?
http://www.pistonheads.com/gassing/topic.asp?h=0&a...
Anyway, here we go again:-
(1) You have a contract of employment. The absence of a document does not mean that there is no contract. Same as last time!
(2) The amount of notice that you have to give to terminate that contract is a matter of inference from the nature of the job. The statutory minimum is one week, not two (two weeks is the statutory minimum required from the employer, given that you have worked there for just over two years). Same as last time!
(3) The late payments over nine months could not now be a basis for leaving without notice because, by your conduct in carrying on working despite late payments, you waived the breach and/or effectively agreed to a varied payment date.
(4) IF, however, you are not paid by tomorrow, then this most recent failure to pay would arguably entitle you to leave now without notice and to claim constructive unfair dismissal, but taking that course would be risky and rather pointless.
(5) I do not know enough about your job to suggest what the implied contractual notice period might be, but a month might be a reasonable stab, as I do not get the impression that you are in a senior and highly paid position.
(6) So: Give notice on Monday 30 November to expire on either 29 December (ie: a month from 30 November) or, if you prefer for neatness, 31 December.
(7) If the employer then dismisses you without some good reason you will have a claim for unfair dismissal, although that will have modest cash value as you have a new job lined up. You could bung in a claim at the same time for unpaid wages and expenses and for failure to give you written particulars of employment (there is a small statutory claim for that). An employment tribunal claim would have an issue cost, and you'd have to make the claim within three months of dismissal (a claim for unpaid wages and expenses could instead be made in a county court within six years of the non payment, and the issue cost would be lower).
(8) I expect that I shall say much the same on thread number three!
http://www.pistonheads.com/gassing/topic.asp?h=0&a...
Anyway, here we go again:-
(1) You have a contract of employment. The absence of a document does not mean that there is no contract. Same as last time!
(2) The amount of notice that you have to give to terminate that contract is a matter of inference from the nature of the job. The statutory minimum is one week, not two (two weeks is the statutory minimum required from the employer, given that you have worked there for just over two years). Same as last time!
(3) The late payments over nine months could not now be a basis for leaving without notice because, by your conduct in carrying on working despite late payments, you waived the breach and/or effectively agreed to a varied payment date.
(4) IF, however, you are not paid by tomorrow, then this most recent failure to pay would arguably entitle you to leave now without notice and to claim constructive unfair dismissal, but taking that course would be risky and rather pointless.
(5) I do not know enough about your job to suggest what the implied contractual notice period might be, but a month might be a reasonable stab, as I do not get the impression that you are in a senior and highly paid position.
(6) So: Give notice on Monday 30 November to expire on either 29 December (ie: a month from 30 November) or, if you prefer for neatness, 31 December.
(7) If the employer then dismisses you without some good reason you will have a claim for unfair dismissal, although that will have modest cash value as you have a new job lined up. You could bung in a claim at the same time for unpaid wages and expenses and for failure to give you written particulars of employment (there is a small statutory claim for that). An employment tribunal claim would have an issue cost, and you'd have to make the claim within three months of dismissal (a claim for unpaid wages and expenses could instead be made in a county court within six years of the non payment, and the issue cost would be lower).
(8) I expect that I shall say much the same on thread number three!
Edited by anonymous-user on Sunday 29th November 07:05
What is it you are looking to protect yourself from? Non-payment of owed wages?
If you resign, then you are not dismissed. Unless you believe she will dismiss you for Gross Misconduct, if so what would that misconduct be? If you were sacked for complaining about a lack of payment of wages you would have a potential whistleblowing claim.
If you are not paid on time you have a potential Constructive Unfair Dismissal claim, as payment of wages is considered a fundamental term of the contract i.e. you can resign without notice - that would of course mean however your company would not pay you any notice period....
If you resign, then you are not dismissed. Unless you believe she will dismiss you for Gross Misconduct, if so what would that misconduct be? If you were sacked for complaining about a lack of payment of wages you would have a potential whistleblowing claim.
If you are not paid on time you have a potential Constructive Unfair Dismissal claim, as payment of wages is considered a fundamental term of the contract i.e. you can resign without notice - that would of course mean however your company would not pay you any notice period....
The constructive dismissal claim would not be a slam dunker, in my opinion. The OP has tolerated being paid on the 27th of the month for nine months, so 27th has arguably become the default pay date. This month the OP is told that he will be paid on the 30th. Arguably a repudiation, but given the background, and as that's only one business day late, I would not be rushing to claim constructive dismissal. If no money appears on Monday, the case would improve. But still: so what? The OP has a new job lined up in January, so claiming constructive dismissal would just buy him an argument that he might win many months down the line, but ensure that he has no pay during December. Better, I suggest, simply to give a month's notice and move on.
Whistleblowing claim - in theory, yes; but again: a game hardly worth the candle in the factual context stated by the OP.
Whistleblowing claim - in theory, yes; but again: a game hardly worth the candle in the factual context stated by the OP.
The Mad Monk said:
Don't go to Lapland if you can't pay your mortgagee(?)
Sort your priorities out.
Thanks for thatSort your priorities out.
I am not taking my son to Lapland - do you honestly think I would do that when not having funds to pay my mortgage?
The SOLE reason I cannot pay my mortgage AND take my son to Lapland is because of my late payment of salary - I live within my means
Gassing Station | Jobs & Employment Matters | Top of Page | What's New | My Stuff