Breach of contract - my rights?
Discussion
I've been working for a business for 7 months which has had fiscal difficulties for virtually all that time. I was asked to take a 25% pay cut a few months back which I refused and they've now just given me my three months notice due to these fiscal issues. They want me to work my notice period - which I'm not inclined to do.
I have a contract which clearly states the day each month when I get paid. Last month I was paid late (prior to receiving my notice). Do I have the right to claim breach of contract, constructive dissmissal and thus my notice period in lieu without working my notice?
I have a contract which clearly states the day each month when I get paid. Last month I was paid late (prior to receiving my notice). Do I have the right to claim breach of contract, constructive dissmissal and thus my notice period in lieu without working my notice?
Unfortunately you need 2 years service to claim constructive (or unfair) dismissal; even so getting any money out of a failing business would be an up-hill struggle. Like already suggested, compromise or simply leave - sounds like the business is going down anyway so it shouldn't come back to bite you in the future.
Even though I have a contract which clearly states 3 month's notice and a defined pay day each month, I have no effective rights if they breach this because of the short time served? What's the point of the contract if I have no effective rights before 2 years is up?
FWIW, I'm not inclined to work the notice - I'm not in desperate need of the cash, but I do feel aggrevied that I;ve not been paid as per my contract with the business - I've held up my side of the contract with seemingly little recourse for me now.
FWIW, I'm not inclined to work the notice - I'm not in desperate need of the cash, but I do feel aggrevied that I;ve not been paid as per my contract with the business - I've held up my side of the contract with seemingly little recourse for me now.
Did they give you warning that payments wouldn't be made on time? If it was well known that the company is having money issues, any judge or tribunal may view their late payment as regrettable but not unreasonable under the circumstances. Plus you did get your pay eventually; if you still hadn't been paid your case would be stronger.
Goughie said:
Even though I have a contract which clearly states 3 month's notice and a defined pay day each month, I have no effective rights if they breach this because of the short time served? What's the point of the contract if I have no effective rights before 2 years is up?
FWIW, I'm not inclined to work the notice - I'm not in desperate need of the cash, but I do feel aggrevied that I;ve not been paid as per my contract with the business - I've held up my side of the contract with seemingly little recourse for me now.
Probably best to negotiate an early exit. Offer a weeks notice and leave. You know better than us if the employer will sue you for any losses he incurs. FWIW, I'm not inclined to work the notice - I'm not in desperate need of the cash, but I do feel aggrevied that I;ve not been paid as per my contract with the business - I've held up my side of the contract with seemingly little recourse for me now.
I can't see how you will get paid without working the hours.
OP, the well meant but amateur advice given to you above is not answering your question. A little learning is a dangerous thing, as the answers focussing incorrectly on the statutory position indicate.
Statutory unfair dismissal is not relevant here, but, as your contract stipulates for three months notice, you cannot lawfully be dismissed without that notice or payment in lieu. The 25% pay cut is a fundamental breach of your contract. You may be able to resign now and claim as damages for constructive wrongful (not unfair) dismissal, the equivalent of three months notice subject to mitigation (by, for example, finding another job).
A note of caution, however - if you have delayed in responding to the threatened pay cut, you may be too late to allege constructive dismissal. If you are responding not to the threat (which in any event was not executed), but to the late payment, you appear to have waited almost two weeks before reacting to that. Your claim , therefore, is not crystal clear. You may be able to allege that the two things together destroyed trust and confidence.
PS: You can claim damages for breach of contract in an Employment Tribunal (subject to a cap on the amount recoverable), as well as in a County Court.
Statutory unfair dismissal is not relevant here, but, as your contract stipulates for three months notice, you cannot lawfully be dismissed without that notice or payment in lieu. The 25% pay cut is a fundamental breach of your contract. You may be able to resign now and claim as damages for constructive wrongful (not unfair) dismissal, the equivalent of three months notice subject to mitigation (by, for example, finding another job).
A note of caution, however - if you have delayed in responding to the threatened pay cut, you may be too late to allege constructive dismissal. If you are responding not to the threat (which in any event was not executed), but to the late payment, you appear to have waited almost two weeks before reacting to that. Your claim , therefore, is not crystal clear. You may be able to allege that the two things together destroyed trust and confidence.
PS: You can claim damages for breach of contract in an Employment Tribunal (subject to a cap on the amount recoverable), as well as in a County Court.
Edited by anonymous-user on Monday 11th February 05:43
Breadvan72 said:
Statutory unfair dismissal is not relevant here, but, as your contract stipulates for three months notice, you cannot lawfully be dismissed without that notice or payment in lieu. The 25% pay cut is a fundamental breach of your contract. You may be able to resign now and claim as damages for constructive wrongful (not unfair) dismissal, the equivalent of three months notice subject to mitigation (by, for example, finding another job).
They haven't implemented the pay cut.Edited by Breadvan72 on Monday 11th February 05:43
They are (afaics) still paying the three months notice.
The employee wants the 3 months notice pay WITHOUT actually having to work the 3 months notice because
(a) they paid him late once
(b) they asked him to take a 25% pay cut.
OP - have I got that right?
You could put forward a trust and confidence case as follows:-
(1) Employer seeks 25% pay cut.
(2) When employee says no to that, employer gives notice.
(3) Employer is then late paying employee.
Employee could argue that employer has demonstrated that it does not wish to honour the contract. On that basis, he can argue constructive summary and therefore wrongful dismissal.
The claim would not be rock solid, and would at best bring in the equivalent of three months salary.
(1) Employer seeks 25% pay cut.
(2) When employee says no to that, employer gives notice.
(3) Employer is then late paying employee.
Employee could argue that employer has demonstrated that it does not wish to honour the contract. On that basis, he can argue constructive summary and therefore wrongful dismissal.
The claim would not be rock solid, and would at best bring in the equivalent of three months salary.
BV – “disinclined to litigate” ??
There is NOTHING to litigate about. The OP is looking for a reason to litigate to punish his employer for giving him notice (damn his impudence).
I’m assuming he paid everybody late and not just the OP. The OP has a right to claim for any losses suffered as a result of the delay in payment, nothing more. The 25% pay cut was proposed – an Employer is entitled to do this. It wasn’t imposed.
There has been nothing irrational, unreasonable or vindictive in anything that the employer has done. The employee OTOH appears to me to want 3 months Notice pay without having to work the notice and is looking for something in law to help him achieve this.
If the above is not an accurate representation then my apologies. If it is then Employer is well rid.
There is NOTHING to litigate about. The OP is looking for a reason to litigate to punish his employer for giving him notice (damn his impudence).
I’m assuming he paid everybody late and not just the OP. The OP has a right to claim for any losses suffered as a result of the delay in payment, nothing more. The 25% pay cut was proposed – an Employer is entitled to do this. It wasn’t imposed.
There has been nothing irrational, unreasonable or vindictive in anything that the employer has done. The employee OTOH appears to me to want 3 months Notice pay without having to work the notice and is looking for something in law to help him achieve this.
If the above is not an accurate representation then my apologies. If it is then Employer is well rid.
There is an arguable case of repudiation of the contract by the employer, as I have explained above. If I were the OP, I would not run the case, but he asked what his options are. His options include claiming constructive dismissal. He might win, he might not. The claim might be worth the hassle, it might not.
Irrational and unreasonable are legally the same thing*, and the test here is not unreasonableness. Vindictiveness, or lack thereof, are similarly not relevant.
*subject to some presently not relevant academic debate between Lord Diplock and Professor Wade in the context of public law.
Irrational and unreasonable are legally the same thing*, and the test here is not unreasonableness. Vindictiveness, or lack thereof, are similarly not relevant.
*subject to some presently not relevant academic debate between Lord Diplock and Professor Wade in the context of public law.
Edited by anonymous-user on Monday 11th February 10:47
ked financially. IMO your best option is to agree an early exit because it's quie possible they will go under soon, owing you money. Breadvan72 said:
There is an arguable case of repudiation of the contract.
BV72 - apologies for being thick. What is the basis of the "repudiation"? You said above;(1) Employer seeks 25% pay cut.
(2) When employee says no to that, employer gives notice.
(3) Employer is then late paying employee.
(1) and (2) are perfectly within the Employers rights. If you can't afford to employ somebody you give them notice.
With regards to (3) is it just the OP whose been paid late? As the employer has already given notice what benefit could be derived from paying the employee late?
The possible repudiation here is arguably a breach of the implied term of trust and confidence. This arises (arguably) as follows. The employer proposes a large pay cut. The employee says no to that. The employer then gives notice . The employer is then late paying the employee. The employee can argue that all of this cumulatively destroys trust and confidence. The argument is not a sure fire winner, but it's not a stone cold loser either.
It matters not whether the employer paid others late too. It matters not that the employer gained no benefit. That's not the test.
It matters not whether the employer paid others late too. It matters not that the employer gained no benefit. That's not the test.
Breadvan72 said:
The possible repudiation here is arguably a breach of the implied term of trust and confidence. This arises (arguably) as follows. The employer proposes a large pay cut. The employee says no to that. The employer then gives notice . The employer is then late paying the employee. The employee can argue that all of this cumulatively destroys trust and confidence. The argument is not a sure fire winner, but it's not a stone cold loser either.
It matters not whether the employer paid others late too. It matters not that the employer gained no benefit. That's not the test.
Fair enough. To my eyes it would (and should) be laughed out of court but you obviously have far more experience in this field It matters not whether the employer paid others late too. It matters not that the employer gained no benefit. That's not the test.
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