Advice please - employer withholding pay
Discussion
Hi, I'm after a bit of advice regarding where I stand with my employer withholding my wages.
I've not had a good relationship with my current employer for a number of months, and I handed in my notice with my employer (I'm employed as permanent staff) a month ago (18th June) and gave three months. More recently I have found alternative employment and my new employer wants me to start on this coming Monday (19th July), I received this offer late on Friday afternoon (9th July) so first thing Monday morning (12th July) wrote a second letter stating I have found alternative work and would be leaving on Friday 16th July - giving as I understand it the legal minimum notice as I've only been there since April 2009. I was told this was unacceptable and would have to discuss with my direct manager to work a longer notice period, my response was I either left immediately or on Friday as stated. I had no response from the company.
Today (15th July) is pay day and nothing has been transferred to my bank account, upon querying this with my direct manager I was told the MD had withheld my wages as the Company didn't know when I was leaving. In view of my second letter and given I had continued to turn up to work this week and had arranged with my colleagues to have a leaving drink at close of play on Friday, I don't see how this can be as they claim.
As soon as I was told pay was being withheld I switch off my computer and left. Where do I stand, the company pay half a month in advance and half in arrears so I'm expecting at least half my wage packet plus pay in lieu of holidays not taken.
Regards
Iain
I've not had a good relationship with my current employer for a number of months, and I handed in my notice with my employer (I'm employed as permanent staff) a month ago (18th June) and gave three months. More recently I have found alternative employment and my new employer wants me to start on this coming Monday (19th July), I received this offer late on Friday afternoon (9th July) so first thing Monday morning (12th July) wrote a second letter stating I have found alternative work and would be leaving on Friday 16th July - giving as I understand it the legal minimum notice as I've only been there since April 2009. I was told this was unacceptable and would have to discuss with my direct manager to work a longer notice period, my response was I either left immediately or on Friday as stated. I had no response from the company.
Today (15th July) is pay day and nothing has been transferred to my bank account, upon querying this with my direct manager I was told the MD had withheld my wages as the Company didn't know when I was leaving. In view of my second letter and given I had continued to turn up to work this week and had arranged with my colleagues to have a leaving drink at close of play on Friday, I don't see how this can be as they claim.
As soon as I was told pay was being withheld I switch off my computer and left. Where do I stand, the company pay half a month in advance and half in arrears so I'm expecting at least half my wage packet plus pay in lieu of holidays not taken.
Regards
Iain
Contract??
If you gave 3 months notice and now what to leave before this then you are in the wrong. To be fair to the company they may have to employ new staff not have the back up need to ttrain that is why you have three months. Are you going to a competitor??
If they are withholding wages legally due to you they are in the wrong.
As in most case of employee/employer dispute I suggest you call your MD understand both sides position and work a compromise. He probably doesn't want you on his payroll being miserable and potentially upsetting other staff. However, if Phil and Steve are going on holiday for two weeks and they thought you were covering...
Switching off and walking out can leed to dismissal so be careful. You can also be deducted wages or have to take the time of as holiday I'd imagine.
Sorry to say this and I'm sure it is a difficult time but I think you need to be less emotional, relax and talk it all through like an adult - think of the longer goal rather than a short term win.
Hope it all sorts out.
If you gave 3 months notice and now what to leave before this then you are in the wrong. To be fair to the company they may have to employ new staff not have the back up need to ttrain that is why you have three months. Are you going to a competitor??
If they are withholding wages legally due to you they are in the wrong.
As in most case of employee/employer dispute I suggest you call your MD understand both sides position and work a compromise. He probably doesn't want you on his payroll being miserable and potentially upsetting other staff. However, if Phil and Steve are going on holiday for two weeks and they thought you were covering...
Switching off and walking out can leed to dismissal so be careful. You can also be deducted wages or have to take the time of as holiday I'd imagine.
Sorry to say this and I'm sure it is a difficult time but I think you need to be less emotional, relax and talk it all through like an adult - think of the longer goal rather than a short term win.
Hope it all sorts out.
Edited by southendpier on Thursday 15th July 12:49
My contract (that I signed under duress but thats another story) states 3months unless agreed otherwise. In having no final response to my second letter, I have taken that as them accepting I leave on Friday. Like its been said this needs an adult perspective and a long term view. I basically would like to know where I stand and what the best course of action is for the situation I'm now in.
Regards
Iain
Regards
Iain
Chassis 33 said:
My contract (that I signed under duress but thats another story) states 3months unless agreed otherwise. In having no final response to my second letter, I have taken that as them accepting I leave on Friday. Like its been said this needs an adult perspective and a long term view. I basically would like to know where I stand and what the best course of action is for the situation I'm now in.
Regards
Iain
As per your contract, unless agreed otherwise - it hasn't been (them not coming back to you is most definitely not them agreeing with your wishes) - you have a 3mth notice period.Regards
Iain
You need to talk to them asap. My suggestion would be face to face.
They probably shouldn't have withheld salary, but then nor should you have just assumed they were going to give you a break on your notice period. You do not want to have a dismissal on your record.
I don't think you'd have a leg to stand on re. withheld salary if some of the pay due on 15 July relates to a period after that date. You've indicated you're going to breach your contract and go anyway; why should they pay you in advance and have the hassle of trying to recover any overpaid salary?
Also, if your employer wished to do so, they could enforce your notice period and take out an injunction preventing you working for anyone else during that time. So it is probably in your interest to agree things rather than argue.
Also, if your employer wished to do so, they could enforce your notice period and take out an injunction preventing you working for anyone else during that time. So it is probably in your interest to agree things rather than argue.
Your contract states 3 months, unless they you have a (written) agreement that you can cut it short, then you have to give 3 months. Or there is a clause in your contract stating 1 months notice upto (say..) the first 18 months of employment, which I doubt you have.
Give over, you can't just leave when you want. It's leaving them high and dry. 3 months will be stated for a reason, to find and train a new person.
Give over, you can't just leave when you want. It's leaving them high and dry. 3 months will be stated for a reason, to find and train a new person.
SJobson said:
I don't think you'd have a leg to stand on re. withheld salary if some of the pay due on 15 July relates to a period after that date. You've indicated you're going to breach your contract and go anyway; why should they pay you in advance and have the hassle of trying to recover any overpaid salary?
I don't think Iain expected them to pay him for the whole month only for the work he would have done up until Friday. If they had said something in advance along the lines of 'we'll be sorting your pay out after Friday and give you a final cheque next week' he'd have been fine with it. What they did was just not pay him and waited for him to ask them about it this morning. He wrote them a letter stating he was finishing on Friday. If that wasn't clear enough for them surely it is reasonable to expect them to have asked him for further confirmation? They obviously knew before this morning they were not going to pay him with everyone else so why not tell him?SJobson said:
Also, if your employer wished to do so, they could enforce your notice period and take out an injunction preventing you working for anyone else during that time. So it is probably in your interest to agree things rather than argue.
Are you sure? Every thing I've read on this states the statutory requirement is a week's notice if you have been employed for more then a month. Most then go on to say you 'should' give the notice in your contract not that you 'must'. I'm not sure an injunction would be granted considering he's not going to work for a competitor and restrictive covenants would come into play. Do you think a judge would restrict someone's ability to earn a living in such circumstances?OSR said:
SJobson said:
I don't think you'd have a leg to stand on re. withheld salary if some of the pay due on 15 July relates to a period after that date. You've indicated you're going to breach your contract and go anyway; why should they pay you in advance and have the hassle of trying to recover any overpaid salary?
I don't think Iain expected them to pay him for the whole month only for the work he would have done up until Friday. If they had said something in advance along the lines of 'we'll be sorting your pay out after Friday and give you a final cheque next week' he'd have been fine with it. What they did was just not pay him and waited for him to ask them about it this morning. He wrote them a letter stating he was finishing on Friday. If that wasn't clear enough for them surely it is reasonable to expect them to have asked him for further confirmation? They obviously knew before this morning they were not going to pay him with everyone else so why not tell him?SJobson said:
Also, if your employer wished to do so, they could enforce your notice period and take out an injunction preventing you working for anyone else during that time. So it is probably in your interest to agree things rather than argue.
Are you sure? Every thing I've read on this states the statutory requirement is a week's notice if you have been employed for more then a month. Most then go on to say you 'should' give the notice in your contract not that you 'must'. I'm not sure an injunction would be granted considering he's not going to work for a competitor and restrictive covenants would come into play. Do you think a judge would restrict someone's ability to earn a living in such circumstances?On the second, it's blatant breach of contract so yes, I believe the employer would be entitled to an injunction. From what I have read on this thread, the employer has been messed around and while it's unlikely any employer would ever actually bother to seek an injunction in these circumstances, it is useful for the OP to know what his bargaining position is. The fact that it's a statutory requirement to have a minimum of one week's notice is irrelevant, since the contract provides for more than one week so the statute is complied with.
Conversely, and as an aside, if an employer tries to compel an employee to take gardening leave during his 3 month notice period, he cannot do so; it is an inherent tenet of the employer/employee relationship that the employee is entitled to work. So it cuts both ways.
As the OP was still working his notice period up until the point he discovered that his wages had not been paid then it is the employer that is in breach of contract (assuming that the contract specifies an exact date for payment and not "on or around the 15th").
Unless the OP is someone with a rare ability/qualification then there is no chance of the employer obtaining an injunction to prevent him from joining another company.
The OP needs to ask the employer for confirmation that his overdue wages and accrued holiday will be paid without delay. If the employer cannot give a date for payment or gives the impression that the wages will not be paid then the OP needs to set out in writing that:
1. The OP considers the non-payment of wages to be a serious breach of contract and is grounds for constructive dismissal,
2. All outstanding wages (including accrued holiday) must be paid withing 7 days or you will bring a claim against the company through the Employment Tribunal Service.
Unless the OP is someone with a rare ability/qualification then there is no chance of the employer obtaining an injunction to prevent him from joining another company.
The OP needs to ask the employer for confirmation that his overdue wages and accrued holiday will be paid without delay. If the employer cannot give a date for payment or gives the impression that the wages will not be paid then the OP needs to set out in writing that:
1. The OP considers the non-payment of wages to be a serious breach of contract and is grounds for constructive dismissal,
2. All outstanding wages (including accrued holiday) must be paid withing 7 days or you will bring a claim against the company through the Employment Tribunal Service.
As soon as the OP quantifies the amount he is expecting to receive, the employer will be able to retort that he cannot leave until the expiry of his notice period. If I were in the OP's shoes, I would try to agree things amicably, rather than fight and drag this out.
While an injunction is unlikely to be used, and may be successfully fought, who would want to get into a position where they were fighting it?
While an injunction is unlikely to be used, and may be successfully fought, who would want to get into a position where they were fighting it?
As long as the OP has satisfied the minimum statutory notice period (1 week) then the employer cannot force him to complete his notice period against his will (this is considered to be slavery and is a breach of the OP's human rights).
If the OP does not complete his notice period then the employer could take him to court for breach of contract and damages for the cost of employing someone to replace him for the remainder of his notice period. However, there is no guarantee that the employer would succeed.
They cannot withhold his wages for work he has completed (or holiday he has accrued) but they do not have to pay him for work he has not done.
Whilst it would obviously be preferable to have agreed an amicable resolution beforehand it is probably now too late. The OP needs to establish if or when he will be paid.
If he is going to be paid for the work already completed (plus accrued holiday) then the OP needs to employer to confirm the date of the payment (which must be made within a reasonable period, say, 7 days).
If he is not going to be paid then he needs to inform the employer in writing immediately (before they dismiss him for failing to attend) that the non-payment of wages is a serious breach of contract and is grounds for constructive dismissal. He therefore tenders his resignation with immediate effect.
If the OP does not complete his notice period then the employer could take him to court for breach of contract and damages for the cost of employing someone to replace him for the remainder of his notice period. However, there is no guarantee that the employer would succeed.
They cannot withhold his wages for work he has completed (or holiday he has accrued) but they do not have to pay him for work he has not done.
Whilst it would obviously be preferable to have agreed an amicable resolution beforehand it is probably now too late. The OP needs to establish if or when he will be paid.
If he is going to be paid for the work already completed (plus accrued holiday) then the OP needs to employer to confirm the date of the payment (which must be made within a reasonable period, say, 7 days).
If he is not going to be paid then he needs to inform the employer in writing immediately (before they dismiss him for failing to attend) that the non-payment of wages is a serious breach of contract and is grounds for constructive dismissal. He therefore tenders his resignation with immediate effect.
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