Where do I go from here..

[mz_pink]

Hi,

 

Started employment June 11th 08. Fell preg (accidentally) in the July.

Was signed off work in Aug and Sept due to Hyperemis (Extreme sickness due to preg and hospitalised due to dehydration) Returned to work month off Oct and worked so well I gained a 350 bonus for sales amounts made.

Hyperemisis returned Nov and Dec..All sickness preg related and covered by doctors certificate. All SSP payments were late and on accasion paid by cheques that bounced resulting in non payment for Sept.

Started my mat leave at earliest time(DEc 28) and went on to SMP which I had to beg for each month as it was never paid on time. I have emails relating to these requests which were all answered.

I requested several times copies of statements of earnings SSP and SMP breakdowns, a copy of my contract but these were all ignored and as I was not in the office I was pretty much ignored.

Finally my director met me in June to discuss my return to work and give me my P6o and contract.

Contract states I should have been paid 13 weeks full pay whilst sick, I only received SSP and as mentioned one months pay bounced.

It was agreed I could take my hols that I accrued whilst on mat leave at the back end of my leave, so mat leave ended 30 sept and hols were to be taken til 9th Nov when I was to go back. It was also agreed that my pay from last year would be paid to me in Augusts pay along with my SMP.

That sounded fab and I was looking forward to returning.

Sept SMP never came I raised a grievance about this as well as the fact that the p60 I had been given was not a true doc. The inland rev didnt accept this.

After several emails sent requesting answers that went unanswered, I was finally told that the director that dealt with my pay had been suspended re fraud. That my contract was iffy due to it not being like everyone elses and that they really didnt know my position in being employed by them.

I have at no time received a verbal or written warning. Had my employment terminated or resigned.

They have stopped paying me anything and will not say whether I am employed or not!

Does the fact that I have been (albeit sporadicallY) receiving payments from them most months imply I am employed by them?

Do I resign and go for constructive and unfair dismissal or just leave it and take them for withholding pay?

Im a lone parent with two young children and in serious dire straights.

Oh also IR have no record of any tax I have paid and have launched a fraud investigation into this as I was trying to claim the 700 tax back that was shown on my iffy lookin p60.

 

If you have managed too stay awake during all of this, welldone!

I hope someone has some answers ... thanks for reading.

[mariefab]

1. Do you have a letter inviting you to an interview?

2. After you applied for the job; did you receive, and retain, a letter stating that you were hired?

3. Do you have any payslips?

4. Do you have anything at all on Comapny headed paper?

5. Can you contact anyone else who works for the Company who can confirm that they worked with you?

6. When you met the Director in June; was it at the office? If so, do you have an email inviting you to this appointment?

7. Can your bank supply the name of the account that sent the payments you received?

[mz_pink]

Thanks so much for your reply.

 

1. I have emails from the agency that got me the interview with start dates

2. I did not receive a letter from the company, just email from agency

3. I have one payslip from June last year..they never gave me anymore despite several requests which are all detailed in emails.

4. I have a signed contract on which is on headed paper.

5. When I went for the informal meeting/chat I went into the office and spoke with 3 other staff members which i previously worked with, this was witnessed by all new employees.

6. The meeting in June was not in the office..Starbucks up the road, which was another reason i felt things were not as they should be! Another staff member attended the meet and she is not willing to help me in a tribunal case due to worry over her job

7. Most payments were made directly from the company account..I have now got copy bank statements which show pay dates, amounts and that the money came from their account.

[mariefab]

Does the payslip from June last year match a payment from June last year from the Company's account?

[mz_pink]

yes

[mariefab]

On what date did you receive the last payment from the Company?

[mz_pink]

September 1st 2009 for SMP for August.. this was made from the company's account.

[mariefab]

I was finally told that the director that dealt with my pay had been suspended re fraud. That my contract was iffy due to it not being like everyone elses and that they really didnt know my position in being employed by them.

 

When and how were you told this?

Have you received anything in writing to this effect?

[mz_pink]

i wa told of this in an informal meet at the office with another director,on 8th sept. I did not have anyone with me or told i could have.

she did not put this in writing, therefore i emailed her thanking her for the meeting and outlining all that was said to my understanding.

i have yet to receive a reply.

[mariefab]

Right, I think it's time for you to take more forceful action, if only to make it clear to them that their policy of ignoring you is not going to work.

 

First create a list of all payments received.

Show the date, the account that each payment was sent from and any other relevant information ( bonus payment, SSP, SMP etc.) next to each payment.

 

Then a letter:

 

address

date

 

Dear ..(the director you had the meeting with on 8th September),

 

I commenced employment with your Company on 11/06/08. As far as I am aware I remain an employee of the Company.

 

Although section 1 of the Employment Rights Act 1996 requires that a statement of particulars (contract) must be issued by the Company within two months; this was not provided.

I was eventually provided with a contract in June 2009 by ..(director's name) at an informal meeting attended by ..(employees name).

 

Since starting work for the Company I have received the payments shown in the document attached.

However, I have only received one payslip which was for June 2008.

Section 8 of the Employment Rights Act 1996 requires that I should have received a payslip for each payment made to me by the Company.

 

At our meeting on 8th September you stated that ........(use the email you have to fill in this paragraph).

 

Any issues that the Company may have with one of it's directors are not my problem. I believe that the Company is liable for the actions of it's directors.

 

To date, I have had no response to my email of ??/09/09 outlining our discussion on 8th September. I feel that I have been sufficiently patient by waiting until now for you to resolve what you consider to be the issues involved in my employment position with the Company.

 

I would appreciate a written response clearly stating my employment position within seven days of receipt of this letter.

 

Yours etc.

 

If you post this letter do it by recorded/special delivery, then check on track and trace after a few days and note the date received on your receipt.

In view of the possible postal strikes; it might be an idea to hand deliver it instead. If you do this, print out two copies and get whoever you hand it to to sign and date your copy for you.

 

Check the link below.

 

Employment Rights Act 1996 (c. 18)

[mz_pink]

OK, thank you again so much for this advice. I am going to give until Wednesday to allow her the two weeks to reply.

In the mean time I am going to construct a letter with the template you have provided me with.

I really am grateful and will keep you posted with any further developments..dont hold your breath though..I think they may be using the delaying tactic so that an ET may not accept my case if it goes that far.x

[teaboy2]

Agreed with Mariefab.

 

You may also want to Subject access request them (along with Mariefabs letter) for all information/data they hold on you inlcuding payments made to you and copies of payslips. note they must have such records for their tax purposes, if they dont then chances are they are not paying the correct taxes and probably defrauding the tax man, which is a criminal offence punishable by jail.

 

With regards to the contract. well the director was acting on the companies behalf when employing you. and your contract is actually in effect from the moment the job is offered to you verbally and accepted by you verbally so no signed written contract needs to be in place for you to be in/under contract, although they do have to provide you with written version along with company handbook and policy within 2 months of starting. Also it doesnt matter if your contract is different to others, as Implied terms still account to being part of your contract. therefore if everyone elses contract is different to yours then since you had effectively agreed an employment contract when you original started employment, then it can be implied that you are contracted to the same terms as everyone else aswell, regardless of if those terms are in writing or not. As such you should request a updated written contract that is same as everyone elses and that would have been the one that would have been issued by the company once the offer of employment was accepted.

 

End of the day the director at the time was a representative of the company and acting on behalf of the company when you where offered employment. therefore it was the company that offered employment and not specifically the director, to say it was the director offering employment would be saying he offered you a job to work for him personnally, which was not the case.

 

also the fact you were paid by the company proves that you worked for them and that a contract between them and you existed.

 

Another thing that may be of interest to you is weather the director commited any from of fraud against you aswell i.e wages ment for you were taken by him. its possible since you had been paid by cheaque previously. so nothing to stop him making cheaque to himself and then just falsifying company accounts to make it look like it was paid to you. So you should request the company inform you of any infromation that comes to light as result of their investigation. if such informtation does come to light then contact the police to have them inverstigate the matter.

 

p.s theres no reasonw hy an employemnt tribunal will not accept your case no matter how long they delay over this. Unless you have specifically been told that you are not there employee then you are in the eyes of the law still emploed by them. even when they do tell u u not emloyed by them u still have 3 months in which to bring it to the attention of an employment tribunal after the date in which they had infromed you that you not their employee.

 

You should consider contacting ACAS who will represent you for free at a tribunal immediately as tribunal action will be back dated to the date in which you raised your grievance with ACAS.

Edited October 19, 2009 by teaboy2

[mz_pink]

Thank you both very much for your help and advice. Here is the email I sent x on 4th Oct...

 

 

Dear x,

Further to our email conversations today, I thought it best to provide you with all details and documents showing my perceived position within my employment with company. I understand that xx leaving the company has probably left you all in a considerable amount of upheaval which I am truly sorry to hear, but this should really not be made to be my problem.

I was employed by you on 11th June 2008. During my interview with yourself and xy it was agreed that I would be allowed to take my holidays as they had already been booked on 1st July- 16th July 2008.

I returned to work after this period and found out I was pregnant and consequently suffered from severe Hyperemisis through pregnancy and signed off work for the months of August and September 2008 these absences were all covered by sickness certificates provided by my doctor.

I returned to work in October and had a successful month of sales and gained a £350 bonus as evidence of this.

In November and December the Hyperemisis returned and I was signed off again for this period with sickness certificates provided again by my doctor.

Due to the nature of my pregnancy related illness it was decided that I would begin my maternity leave at the earliest date, being 28th December 2008. I was assured that I could take the holidays which were to be accrued whilst on maternity leave once my Maternity leave ended.

When I started my Maternity leave I requested my contract, a breakdown of earnings to date, SSP included all I was given were payslips for the months June July and Oct. There was no copy of breakdown in SSP paid.

I did however receive a breakdown in maternity payments to expect and told I would receive each payment on the last Thursday of each month. This was rarely the case and on occasions payments were missed out completely, paid by cheques that bounced or up to 3 weeks late.

When it came to the end of the financial year I requested my P60 and again a statement of earnings detailing SSP and SMP as well as wages earned. I had to make this request along with the request of my contract on numerous occasions. Then finally xx met with me on 25th June at Out of office location and handed me an envelope and told me it was all in there’. On further inspection, all that was in the envelope was my contract and a strange looking P60 which had been printed out from a PC, written on with biro pen stating my earnings of 5969.00 and tax paid £799.00, this had been photocopied. The Inland Revenue are not accepting this as an original document and have now instigated their own investigations with you. The last I heard was that they had sent out two written requests for the correct information from you.

Whilst reading through my contract it states that I should receive 13 weeks sick pay at full pay less SSP.

Which works out at 13x 269.23 =3500 less 948.00 SSP already paid =2552gross.

Then I got out my bank statements to further look at the dates which wages, bonuses, SSP and SMP were paid to show that these had been extremely sporadic. Amounts and dates can be seen below and I will provide you with my bank statements as further evidence of this.

Whilst scrutinising these payments it seems that I was not paid a penny for the month of September last year, due to a bounced cheque. I should have been paid £316.00 for that month.

To be perfectly honest with you x, the vast amounts due to me I know I am entitled to legally as I have myself been to see a lawyer. I know with time you will do your own investigations into your accounts and find this out.

My immediate concern is that I have been assured by xx that there would be a position for me to return to and that you are giving me the impression you have no idea that I was in fact on maternity leave, even though I have been receiving maternity pay from the company to date. My last SMP instalment was due at the end of September and I am now on holidays, taking the holidays which were accrued whilst I was on maternity leave. I am due Septembers SMP which should be around £468.00, full holiday pay at the end of October and first week of November and starting back at work on Nov 9th as agreed with xz at our last meeting on 19th August.

There is no job description on the contract, all it states is that I am employed as sales consultant and have a salary of £14,000pa.

 

 

When I return to work, after ordinary maternity leave, I have a right to the same job and the same terms and conditions as if I hadn’t been absent, .which in effect I have now done already although I am taking holidays.

This also applies when I come back after additional maternity leave, unless you show that it’s not reasonably practicable for you to take me back in my original job (for example, because the job no longer exists). In that case, I must be offered alternative work with terms and conditions as if I hadn’t been absent.

 

 

Sincerely,

 

x then met me on 8th oct to have an informal chat. where by she explained a fraud investigation was going on which led to the suspension of xx. 72-100k missing from company accounts whilst x was on hols in july/aug this year and that my contract had been passed over to the 'investigation'. My 'file' had also been passed to an external body. "I havent scrimped(sp), its gone to a top QC"

"My position is that I am trying to ascertain, our position as a company, in regard to your employment position and what our duties are to you."

But at present she would not say if I was employed or not and when I asked what kind of evidence she would find considering that I have recieved no verbal or written warning, no letter of dismissal and I have not resigned, been receiving payments most months from their account.

There was no resolution or any sort of advice apart from her saying it will take a matter of weeks more than days to find all this out.

 

I have since had no updates and on 17th Oct I sent this email to x....

 

Hi x,

 

Thank you for meeting with me on Thursday 8th October and explaining to me that there is a fraud investigation going on at present with xx due to vast amounts of money going missing from The Company's accounts during your holiday time in July/August of this year and that you have sent off a copy of the contract xx gave me, which is being investigated also. As this is a fraud investigation and the implications are that I have had fraudulent payments made to me as Statutory Maternity Pay, have the police been contacted regaarding this?

I would also like to know if there have been any further developments regarding your investigations as to what my employment status is with you?

 

Any updates would be very welcome.

 

Many thanks

 

 

 

I am now thinking that she is using the delaying tactic in the case that I take this to I tribunal.

 

The initial greivance was raised to the suspended director on 14th Sept but only received by x on 14th Sept as far as i can prove.

 

The informal chat on 8th Oct cannot surely be deemed as a grievance meeting as I was not informed it was so and had no representation.

 

Shall I now request the information they have on file or lodge a tribunal claim? What can I claim for?

 

I have an appt with the CAB on 2 Nov (ages away) and worried that if I dont get the ball rolling before that date then things might be more difficult with the tight timescales envolved with tribunals.

 

I know this is such a long winded case but a I truly am grateful for the advice you have given me.

[mz_pink]

Low and behold I have now received a reply to the latest email....

 

Thank you

I am on holiday for one week

I will be back in the office on Monday 26th October

This was not an out of office reply, merely an empty response delaying things further I take it.

Oh this is so frustrating.

[teaboy2]

ok subject access request them youll have a fee of £10 which is a satutory fee however since they owe you money and given the circumstances you can request they waive the fee. Then you want to ask for details of the external people that your files were handed to becuase if it was a QC then why he/she not contacted you. So ask for that too, so then you can contact them directly and am sure theyll be more helpful then the company is.

 

Also contact acas right now as the CAB will only pass your case onto them anyway. you wont have to automtaically proceed with the tribunal but atleast youd have taken the first step and have legal representation.

 

Oh and dont worry about timescale you have not had your employment terminated yet therefore you still employed regards of what the company says. The 3 month deadline is from the date in which your employment was terminated not from when the grievance was first raised in other words you could wait 6 months to goto tribunal if you wanted to so long as your contract was not terminated which it hasnt been.

 

I also hope you blanked out your account details on your bank details cos this whole company is sounded dodgy to me and i wouldnt trust them with my phone number let alone bank details.

 

 

P.s its an offence for them to diclose information they have on you to 3 parties that are not acting within a legal capacity. so if it turns out the investigative QC is not QC. then they are in breach of the data protectiona nd information acts and could face substantial fines same if they reject your subject access request when yu have paid the fee.

[teaboy2]

Low and behold I have now received a reply to the latest email....

 

Thank you

I am on holiday for one week

I will be back in the office on Monday 26th October

 

This was not an out of office reply, merely an empty response delaying things further I take it.

Oh this is so frustrating.

 

 

lol is she taking the ****. didnt she have a holiday just a few weeks ago?

 

keep every email as evidence.

 

actually was that email in response to email you sent less then 5mins before you recieved that response? if so then it an auto response must likley. if it taken more then 10 mins for that reposne to your last email, then its clear it not an autoresponse and she just read the email and couldnt be bothered, so is putting off dealing with it.

[mz_pink]

Yes I think she is taking the P, through this whole thing..that response was made this morning from the last email I sent on 17th oct.

I have now replied withthe following....

I see that this is not an automated response to my email dated 17th October and that you have had a chance, whilst in the office this morning, to read over my email and have chosen not to even give me a quick update before you left for holiday, delaying the matter further.

Therefore on your return can you please send me all of the information relating to me which you hold and has been 'given over' to the external investigative body, as well as any other documentation in relation to me that you hold, which I am entitled to under the Section 7(1) of the Data Protection Act 1998.

If you need further information from me, please let me know as soon as possible.

If you do not normally handle these requests for your organisation, please pass this letter to your Data protection officer or another appropriate official.

 

Kind regards

 

Cant believe this has all turned out like this, all I initially wanted to do was confirm my return date, get a tax rebate, have my backdated unapaid sick pay paid and go back to my job which I loved. I dont know what it is I have done to warrant this treatment, it has hindered the enjjoyment of being a new mum, other employment possibilities as they are refusing to give references to possible new employers and stopping me getting benefits as Im still classed as employed. This also has implications on my tax credits as it may look to them that I was claiming fraudulently, particularly when i know for a fact they have not paid any tax for me 2008/09.

[teaboy2]

i totally understand you and agree its puts u in a very difficult situation. However when you do goto see the CAB they should beable to help you sort al that out along with take any legal action if and where needed. i.e if as i suspect the company is acting unlawfully then you could issue a small claims court action againts them for damages but am not an expert in that area but as i said CAB would beable to answer all your questions about it. plus i would expect it to be the companies duty to insure your welfare as a victim to there so called former director who was acting as a representative of the company at the time. Are you still being paid by the way? or have they stopped paying you?

 

p.s if she replies saying they need the £10 fee simply put that given the situation that you respectfully request they waive the fee as sign of goodwill.

[mz_pink]

Sorry, this is the most immediate problem for me financially, I am a lone parent, was getting SMP from Jan. Last payment was 1st Sept for August then this all started and I have not received anything since. Was due last SMP payment end of Sept then should be getting a full salary at end of Oct as supposed to be on hols acrrued whilst on mat leave.

SMP is hard enough to live on with two under 5 let alone zilch..and the CAB on Nov 2nd seems such a long way off.

Will be phoning ACAS tonight as it was them who initially adivised me to raise the grievance.

[teaboy2]

Sorry, this is the most immediate problem for me financially, I am a lone parent, was getting SMP from Jan. Last payment was 1st Sept for August then this all started and I have not received anything since. Was due last SMP payment end of Sept then should be getting a full salary at end of Oct as supposed to be on hols acrrued whilst on mat leave.

SMP is hard enough to live on with two under 5 let alone zilch..and the CAB on Nov 2nd seems such a long way off.

Will be phoning ACAS tonight as it was them who initially adivised me to raise the grievance.

 

although the company is uncertain as to your position of being an employee or not, they should still be paying you as if you were an employee. as they have a legal duty to do so with you being employed by a company director to work for the company. So with holding your satutory entitlement while your still under contract is an offence. Any judge in the land would agree that until this is resolved you are infact still and employee of the company.

 

I agree you should contact acas straight away, let us know what they say.

[teaboy2]

Just a quick question but have you tried applying for income support? bear in mind this is not jobseekers, and lone parents are actually eligble for it so long as your not working more then 16hours a week. and since you not receiving any wages from the company, and if you explain the situation to them. then i cant see why they can turn you down for it. So it maybe worth looking into cos weather your employed or not doesnt matter, its the fact your not working that matters and the fact your not being paid your entitlements cos of the situation.

[mz_pink]

Thought that you may also find this interesting....this is one reply I recieved on 4th October before the director who is now dealing with my 'case' received my 'contract'.

 

Subject: RE: Grievance

 

You are not being personalised. If anyone else was in the same situation I would have not choice but to look into the claim and ask the same questions. It is really important that I understand what our obligations to you are. How can I know what our obligations are without a contract. Payments are only evidence of what our arrangements are . There is at present no signed contract on file.

If someone makes erroneous payments it does not create a contract.

You wish to come to company for work at the beginning of November. I have no idea at this time what you expect your work will be. I have no idea what terms you think you should be returning to. I have no idea what claims you may or may not have against this small business.

All I do know is that I met you over 18 months ago, saw you in the office a few times and that was that. That is the reality from my perspective. I have a file full of blanks and a history of non presentation of appropriate documentation. So whist you may claim that we owe you money ( which may or may not be right) I have a file suggesting that there was a lack of correspondence from you ( which may or may not be right) In fact what is so strange about this matter is that I have a lot of paper work but no contract which you seem to have.

I am sure that once I have a copy of the signed contract you hold we will be able to sort this out both from perspective of the past and the future since they are related.

I can do no more until this matter is in the hands of a employment expert. As a lawyer I am more than aware of the complexity of employment law and the need to ensure that appropriate records are kept for both employee and employer and as you can imagine I find the situation relating to you somewhat bizarre.

x

As for a lack of correspondence I have a file full of emails updating them of my sicknesses and doctor has agreed to give me a letter stating that i was infact signed off. I have discharge letters from hospital on the times I was admitted or recieved treatment as a day case.

Surely 'as a lawyer' which I was not aware she was, she should know the system. Is she intimidating me into dropping matters or will she really know how to work the system to her advantage/benefit?

Anyway..ACAS will hopefully give me the right advice on the next steps to take..once kids are in bed I will get peace to go through all of this. Lets hope the lines are not too busy..Will KUP.

[teaboy2]

If shes a lawyer then whats she doing working for a small firm where her salary will be probably be alot less. Also lawyer is american term correct term here is solicitor so sounds like shes been watching to many hollywood movies and got the word lawyer confused to solicitor like many here do.

 

With Regards to contract no signed written contract is needed as your contracted is according to employment law in effect once a verbal offer of employment is accepted by a representative of the company. it is their fore not your responsibilty to have ensured any contract signed after you started your employment is forwarded to them after you handed a copy back to the manger or director. Also payments sent to you by the company does prove that you were paid for either products or service in this case a service i.e working for them.

 

fact she saw you in the office from time to time aswell. what the hell she think you were doing there if not working? ****ing sunbathing under the ultraviolent office lights lol? this woman is seriously taking the ****. so bollocks to them you bring acas into to represent you.

 

basically shes full of crap! and sounds to me like with it being a small business that they cant afford to pay you and just making up excuses. have you tried anyway of finding out if the director that employed you really has been suspended/sacked or weatehr hes still there or not such as is his car there etc.

 

p.s "payments are only evidence of what our arrangements are" so she admits there was some employment arrangements which you were paid for such as your SMP payments that you did receive.

Edited October 19, 2009 by teaboy2

[MATTYFEZ]

Thanks so much for your reply.

 

1. I have emails from the agency that got me the interview with start dates

2. I did not receive a letter from the company, just email from agency

 

Are you employed by the company, or are you an agency worker? what (company) does it say on you wage slips? did they pay tax and national insurance?

 

Also the above letter looks a little juvenile, that is no legal eagle for sure! they even referred to themselves as a 'Lawyer' heheh, I think whoever wrote that had overdosed on American sitcoms!!

A written contract is not nessesary for employment, the fact that you acted as an employee and were paid as such, is a contract of employment in itself.

Edited October 19, 2009 by MATTYFEZ

[teaboy2]

Are you employed by the company, or are you an agency worker? what (company) does it say on you wage slips? did they pay tax and national insurance?

 

Also the above letter looks a little juvenile, that is no legal eagle for sure! they even referred to themselves as a 'Lawyer' heheh, I think whoever wrote that had overdosed on American sitcoms!!

A written contract is not nessesary for employment, the fact that you acted as an employee and were paid as such, is a contract of employment in itself.

 

thats exactly right lol how the hell this **** taker of a woman is claiming to be a lawyer when we not have lawyers here is beyond me its so obvious that shes trying to get away with not paying her by denie there was a contract yet at same time she admits to paying her as to their arrangment i.e employment.

 

With regards to wether the agency was employment or recruitment i believe it was recruitment, otherwise the contract would have been with the eployment agency not the actual company.

 

either way its pretty clear this sad lady is deliberately misleading this poor girl in order to avoid paying her anymore SMP and to avoid continuing her employment.

 

infact id love to know who the company is so pm me the company name so i can research them and see what i can find out about them. dont post the name on the open thread though.