Withheld wages and possible unfair dismissal - employment and visa problem
- Thread starter maomao
- Start date
cesare
shady's dreams ♥
Depends on the visa, but generally you can work part time and full time in holidays.
maomao
普費斯
She worked full time from completing her masters in June 2004 to getting a proper visa in November 2005. If she's been naughty in this respect does it affect her chances of getting money back out of her employer?
cesare
shady's dreams ♥
If her employer was in the process of applying for the working visa, I think (but not sure) it would probably have been OK. But I'm not an immigration specialist. In any event, it wouldn't stop her from pursuing her current claims against her employer.
ViolentPanda
Hardly getting over it.
maomao
普費斯
Yes, if she could afford a lawyer.
She's going to see her boss tonight and I'm going along for moral support so may come back with slightly clearer questions tonight or tomorrow.
two sheds
Least noticed poster 2007
Could CAB help, or know someone who could help? Good that you're going - not just for moral support but also as a witness
maomao
普費斯
Could CAB help, or know someone who could help? Good that you're going - not just for moral support but also as a witness
She's spoken to the CAB. They told her they basically couldn't help with her type of problem, particularly as her visa was dependent on her job.
And I won't be a witness, I think I'll be waiting outside.
cesare
shady's dreams ♥
Here's the website: http://www.communitylegaladvice.org.uk/
maomao
普費斯
Thanks, I will be passing that on.
maomao
普費斯
Ok, I've got the full story now. She'd been asked to go to see her boss at 7.30 tonight but was met by a manager (who the boss is having an affair with lol) instead. I also had the chance to ask her for the full story. I'll try and make it concise for anyone still interested.
The original length of the holiday was agreed. In fact she bought the tickets from her work as they are a travel agent. She had not been allowed any paid holiday at all for two and a half years previous to this holiday. She has never been told how many days paid holiday she is entitled to as she has never been given a copy of her contract. she has also never been given a payslip and she has had deductions made for punctuality problems (sometimes arriving as many as 15 minutes late she shamefully admitted) but has never veen informed how much. she was also never formally disciplined for this. Her stated salary (and the minimum salary for someone on her visa type) was £18,000 p.a. but she generally recieved 900-1000 pounds a month in her bank account but with no payslip and no record of what deductions had been made she has no way of knowing how much her pre-tax salary was and what deductions had been made. She was regularly expected to work overtime with no payment made.
Before going on holiday she had an argument with her boss where he shouted at her and blamed her for the failure of the branch she was looking after. She left upset, without replying verbally to his accusation. On returning to the UK in august she phoned work and asked what day she should come in. She was told it had been a long hourney and she should rest for a few days. The next Monday morning she was genuinely ill and phoned in sick. She was told not to worry and call in again when she was better. after phoning in on Thursday and saying she was better she still hadn't been told when she could return to work. On the Friday (Friday just gone) she took a letter to work saying she was well now and would like to return as soon as possible.
Today she was asked to go for a meeting with her boss. She was met by a managaress who told her she didn't know when she would be able to work for them again and she would not be paid at all for July. She was told that in order for her to return to work for the company she would be expected first to write a letter explaining and justifying her previous mistakes (including punctuality problems and her 'mismanagement' of her branch of the company). She is very very angry and doesn't want to do this.
She would like to take him to an employment tribunal but visa or no visa, without payment she doesn't have enough money to stay in the country past the end of September. Tomorrow she will be calling the Community Legal Advice number given above and also writing a letter outlining her grievances against the company which will be delivered and signed for on Monday (I can arrange this at work, unless using Royal Mail recorded delivery would be a better idea for any reason). Any advice above and beyond this would be gratefully appreciated. Especially regarding the time frame for taking someone to tribunal.
It also transpires that there are currently three members of full time staff at the company who are currently here on student visas. The company also has a habit of not paying people their final wages just before they leave the country (unfortunately most of these people have allready left the UK and can't be roped in, I do however have another friend who was done out of a month's wages by the same people just over 2 years ago).
It seems like there's a lot of ammunition against the guy who runs this company, he basically hasn't fulfilled any of his legal duties as an employer. But I really don't know enough about this sort of thing to know what will be useful and what won't, so again, I would be very grateful for any advice. She's a very dear friend who I've known for over 5 years and I really hate the way she's been treated.
The original length of the holiday was agreed. In fact she bought the tickets from her work as they are a travel agent. She had not been allowed any paid holiday at all for two and a half years previous to this holiday. She has never been told how many days paid holiday she is entitled to as she has never been given a copy of her contract. she has also never been given a payslip and she has had deductions made for punctuality problems (sometimes arriving as many as 15 minutes late she shamefully admitted) but has never veen informed how much. she was also never formally disciplined for this. Her stated salary (and the minimum salary for someone on her visa type) was £18,000 p.a. but she generally recieved 900-1000 pounds a month in her bank account but with no payslip and no record of what deductions had been made she has no way of knowing how much her pre-tax salary was and what deductions had been made. She was regularly expected to work overtime with no payment made.
Before going on holiday she had an argument with her boss where he shouted at her and blamed her for the failure of the branch she was looking after. She left upset, without replying verbally to his accusation. On returning to the UK in august she phoned work and asked what day she should come in. She was told it had been a long hourney and she should rest for a few days. The next Monday morning she was genuinely ill and phoned in sick. She was told not to worry and call in again when she was better. after phoning in on Thursday and saying she was better she still hadn't been told when she could return to work. On the Friday (Friday just gone) she took a letter to work saying she was well now and would like to return as soon as possible.
Today she was asked to go for a meeting with her boss. She was met by a managaress who told her she didn't know when she would be able to work for them again and she would not be paid at all for July. She was told that in order for her to return to work for the company she would be expected first to write a letter explaining and justifying her previous mistakes (including punctuality problems and her 'mismanagement' of her branch of the company). She is very very angry and doesn't want to do this.
She would like to take him to an employment tribunal but visa or no visa, without payment she doesn't have enough money to stay in the country past the end of September. Tomorrow she will be calling the Community Legal Advice number given above and also writing a letter outlining her grievances against the company which will be delivered and signed for on Monday (I can arrange this at work, unless using Royal Mail recorded delivery would be a better idea for any reason). Any advice above and beyond this would be gratefully appreciated. Especially regarding the time frame for taking someone to tribunal.
It also transpires that there are currently three members of full time staff at the company who are currently here on student visas. The company also has a habit of not paying people their final wages just before they leave the country (unfortunately most of these people have allready left the UK and can't be roped in, I do however have another friend who was done out of a month's wages by the same people just over 2 years ago).
It seems like there's a lot of ammunition against the guy who runs this company, he basically hasn't fulfilled any of his legal duties as an employer. But I really don't know enough about this sort of thing to know what will be useful and what won't, so again, I would be very grateful for any advice. She's a very dear friend who I've known for over 5 years and I really hate the way she's been treated.
cesare
shady's dreams ♥
She needs to try and get the visa sorted as priority as I've already mentioned. But she can make her claims at the Employment Tribunal in the meantime. This can be done on-line and it doesn't cost anything. It is also possible for her to name you as her representative (if you/she want) so that you can handle things on her behalf if she has to leave the country.
It's entirely right to list her grievances, but make this an appeal against dismissal - because that is what they have done, dismissed her.
She has three months from the date of dismissal in which to make her claim in the Employment Tribunal.
OK, the claims so far from what you have told us are:
Unfair dismissal
Failure to allow accompaniment to hearing
Unlawful deduction from wages
Wrongful dismissal/Breach of contract (no notice or pay in lieu of notice)
Failure to provide holiday entitlement
Failure to provide written statement of particulars
Failure to provide payslips
(If I think of any more, I'll edit to add them)
So the appeal is against the unfair/wrongful dismissal - but also listing the other grievances.
Download the ACAS Code of Practice that you can find here: http://www.acas.org.uk/index.aspx?articleid=2179 which outlines how the dismissal should have been handled, where they've not complied, list it in the appeal letter. The Code of Practice is a statutory instrument which the Employment Tribunal take into account when deciding whether a dismissal was fair or not.
The directgov site gives loads of info on other employment rights, as does the ACAS site.
It's entirely right to list her grievances, but make this an appeal against dismissal - because that is what they have done, dismissed her.
She has three months from the date of dismissal in which to make her claim in the Employment Tribunal.
OK, the claims so far from what you have told us are:
Unfair dismissal
Failure to allow accompaniment to hearing
Unlawful deduction from wages
Wrongful dismissal/Breach of contract (no notice or pay in lieu of notice)
Failure to provide holiday entitlement
Failure to provide written statement of particulars
Failure to provide payslips
(If I think of any more, I'll edit to add them)
So the appeal is against the unfair/wrongful dismissal - but also listing the other grievances.
Download the ACAS Code of Practice that you can find here: http://www.acas.org.uk/index.aspx?articleid=2179 which outlines how the dismissal should have been handled, where they've not complied, list it in the appeal letter. The Code of Practice is a statutory instrument which the Employment Tribunal take into account when deciding whether a dismissal was fair or not.
The directgov site gives loads of info on other employment rights, as does the ACAS site.
maomao
普費斯
Thanks, that's great.
As they've not actually dismissed her and left the question of her return to work open her visa hasn't come into it yet. Phoning the visa people directly might work against her at the moment. She's phoning the CLA in the next hour or two and I think I'd rather leave that question up to them.
cesare said:
As they've not actually dismissed her and left the question of her return to work open her visa hasn't come into it yet. Phoning the visa people directly might work against her at the moment. She's phoning the CLA in the next hour or two and I think I'd rather leave that question up to them.
cesare
shady's dreams ♥
This is where it gets tricky. They can't actually leave open the question of return to work - they have to provide work and she has to carry it out. That's the basis of the employment contract. Withdrawing the work is effectively terminating the contract. So that works against her on the visa side, but for her on the employment claims side.
maomao
普費斯
She pointed that out to me. I'm working on Monday and forgot. Tuesday will do and gives her another day to work on the letter.
maomao
普費斯
She has now phoned the CLA who informed her she qualifies for free help and have now phoned her back for a longer chat. So massive thanks to Belboid and Cesare for that link. I also forwarded her Cesare's longer post which was very helpful in getting her to see just how much she has been screwed over here. In my experience Chinese companies here think they can get away with treating their employees as if they were still in China. I hope she can take this all the way to a tribunal.
cesare
shady's dreams ♥
Good luck to her. Let us know how she gets on. There's other stuff depending what the immigration lawyer says ... for instance if they take the stance that she's still employed because of the visa implications, she can forget unfair dismissal (for now, although the rest of the claims stand) and instead also claim that she should have been paid national minimum wage whilst they weren't providing work. Much more tenuous, but a possibility.
maomao
普費斯
I don't think there is a case for unfair dismissal (yet). The main point is that she hasn't been paid a penny in over two months now.
maomao
普費斯
Really? Foreign person treated badly by foreign person? Still, any journos reading this thread welcome to contact me.
In addition she kind of wants to keep the fact that most of his employees don't have the right kind of visa as a bargaining chip.
maomao
普費斯
Well, we filed a claim to the employment tribunal in October last year and her employer didn't respond to any of the claims. On Monday she got a phone call from her lawyer saying she'd essentially won. We sent him an email to clarify what this meant and whether there'd be a hearing and whether she'd need to give evidence, she's also worried that this would conflict with an upcoming holiday. She got this response today.
Just posting this up to say thanks for the advice I received on this thread really. It was very helpful and she wouldn't have got this far without everyone here's advice.
I'm assuming that 'set' in this context means that a date won't be set for another two months and the actual date is likely to be much later. If anyone here had any idea of timescale it would be very helpful.
a lawyer said:
Just posting this up to say thanks for the advice I received on this thread really. It was very helpful and she wouldn't have got this far without everyone here's advice.
I'm assuming that 'set' in this context means that a date won't be set for another two months and the actual date is likely to be much later. If anyone here had any idea of timescale it would be very helpful.
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