not been paid by employer and fear they might be pushing for constructive dismissal

[mr x]

Hi,

I have returned to my workplace from long term sick on the 9th of January of this year.
Upon my return I was escorted off site by the HR person due to not having a 'fit to return to work note. I am aware that this is not a legal requirement to have.
Due to this, on the 9th they put me onto the Nil pay system.

Since then and throughout my gradual return to work I have had multiple meetings with HR where she has implied that she doesn't believe anything I say. Other was referred to a rehab specialist who had me doing a weekly diet diary and sending it to her for discussion in the meetings.

Now.

Last week (Friday at 17:24pm) I had an email from the Same HR person stating there are issues with the NIL pay system and therefore I wouldn't get paid on pay day which is today by the way.
I noticed that although the subject of the email stated for the addressee only under strictest confidence, my managers had also been included in the email...

It also stated that she (HR ) had discussed it with my boss earlier that day...

I feel notifying me via email at 17.24 on a Friday evening which leaves me no time to contact anybody regarding this is not right. And the fact I feel I should have been informed via telephone call.
Also due to the fact the said He person. Is not in today which leaves me in a mess having zero cash and needing to travel 30 miles from my partners house to work tonight with no fuel.

Any advice on if any of this is legal would be greatly appreciated

[shell]

Re: not been paid by employer and fear they might be pushing for constructive dismiss

There must be someone else besides the HR person you can contact. What about the wages department? Kick up a stink. There is no excuse for this. Inform them that a BACS payment can be done immediately. Tell them that as far as you are concerned this is withholding of wages which is illegal. They can look up what you are due and do a Bacs transfer, if it later turns out there is a discrepancy then it can be rectified later. Also inform them that any bank charges resulting from their decision not to pay you will be sent and charged to the company. Basically you need to inform them in no uncertain terms, you are due your wages, you want your wages. end of. How they do it is of no concern to you, all you are concerned about is them paying you as per contract.

[mr x]

Re: not been paid by employer and fear they might be pushing for constructive dismiss

Hi Shell, thanks for your quick response.

I am severely concerned as I know the HR woman has it in for me for whatever reason.

I have spoken to my union Rep who has contacted the HR manager to request an emergency payment into my account

I will be chasing this up shortly to find out if they are doing this

[shell]

Re: not been paid by employer and fear they might be pushing for constructive dismiss

Mr X. No matter if the HR person has it in for you, they still have to pay you. I would also try and find out if anybody else on this payment system has been paid on time. If so I would want to know why. Please log all these things so that if it does come to a dismissal you have evidence.

[mr x]

Re: not been paid by employer and fear they might be pushing for constructive dismiss

Hi Shell,

I don't know anyone else who's been on long term sick who's on the nil pay system so cannot check this, However everyone else who worK's there have been paid

[Eloise01]

Re: not been paid by employer and fear they might be pushing for constructive dismiss

What is a NIL pay system - this is not something that everyone has, so this isn't clear.

As you have already discovered, there is a vast difference between "an employer must pay you on time" and "getting paid on time". In a case such as this the union is your best bet to get this sorted speedily since legal action would take several more weeks and the matter would be resolved long before that. Whilst you may believe that this is part of some greater agenda, the simple fact is that sometimes things go wrong, and it would be nigh on impossible to evidence that they encountered some system wide problems just to get at you. I would certainly expect it to be normal practice that if such an issue arose which may result in someone not being paid on time that this should be notified to employees managers - they cannot discuss the issue and how to support their staff in such circumstances if they know nothing about it.

Things go wrong and mistakes happen. It is necessary to be careful that you do not start seeing bogeymen under the bed - it is all too easy to come across as irrational and undermine your own position without realising that is what you are doing. This is one issue - treat it as such and get it sorted out so that you are paid. Then if there are issues in relation to your substantive employment and you wish to take further advice on this, we can explore what is happening that is causing difficulty and whether there might be things you can do about that.

[mr x]

Re: not been paid by employer and fear they might be pushing for constructive dismiss

Hi, thanks for the advice.

A nil pay system (in the company I work for at least) is what comes after you use up all of your occupational sick pay. They then stop paying you and will only pay you for hours you work (even on a phased return to work plan)

[leclerc]

Re: not been paid by employer and fear they might be pushing for constructive dismiss

I want to ask this question to Eloise which is in relation to yourself Mr X. Legally, has the company effectively enforced a salary deduction which as shell has said above, is unlawful and therefore they need to pay it back.

Mr X, is the company you work for, small or big? Is it part of a larger conglomerate or major company?
If it is then I think the words email to Chief Executive Officer of the company would be order in this regards since their actions are putting you in financial hardship and their actions might be(wait for eloise first) unlawful.

[Eloise01]

Re: not been paid by employer and fear they might be pushing for constructive dismiss

I want to ask this question to Eloise which is in relation to yourself Mr X. Legally, has the company effectively enforced a salary deduction which as shell has said above, is unlawful and therefore they need to pay it back.

Mr X, is the company you work for, small or big? Is it part of a larger conglomerate or major company?
If it is then I think the words email to Chief Executive Officer of the company would be order in this regards since their actions are putting you in financial hardship and their actions might be(wait for eloise first) unlawful.

The law is not quite that perverse. An unlawful deduction in pay is a deliberate failure to pay due wages - not a snafu. There is no indication here that there is evidence of a deliberate act to refuse to pay - it is an error / system faliure or whatever. Mistakes happen, and employers are obliged to quickly rectify those errors where they are responsible for them. If the error results in quantifiable loss (bank charges, for example) these may be actionable seperately in civil law (so not through a tribunal) but this rarely happens as most reasonable employers will reimburse such charges upon receipt of evidence that their error was responsible for the loss. So on the face of it, based on what has been said here, this is not yet technically an unlawful deduction; and it is a breach of contract at such a minor level that it would not be actionable in itself.

[mr x]

Re: not been paid by employer and fear they might be pushing for constructive dismiss

Hi leclerc

The company I work for is a massive company with different sites globally

[Eloise01]

Re: not been paid by employer and fear they might be pushing for constructive dismiss

Hi, thanks for the advice.

A nil pay system (in the company I work for at least) is what comes after you use up all of your occupational sick pay. They then stop paying you and will only pay you for hours you work (even on a phased return to work plan)

Ah right - never heard it called that before, and I wasn't sure that the "NIL" wasn't an acronym for something. It is quite common (in fact, more common than not) that pay on a phased return would reflect the hours worked - most employers that pay full pay on a phased return do so because they are able to offset leave due or occupational sick pay against the hours not worked. If there is none to offset, then I would expect a reduced wage.

[leclerc]

Re: not been paid by employer and fear they might be pushing for constructive dismiss

Hi leclerc

The company I work for is a massive company with different sites globally

Personally I would email their CEO office with a basic outline of the issue and stick mainly just to the issue of not being paid and explain the Nil Contract issue and that you were disappointed that you were only told a x time on the Friday night. You will be amazed sometimes how quickly this is rectified. If you are on pay per hour then you need to keep a record of ALL hours worked as well.

[mr x]

Re: not been paid by employer and fear they might be pushing for constructive dismiss

During the return to work I made up the hours I didn't work using annual leave hours to ensure my pay wasn't reduced in order to pay bills and other commitments

[Eloise01]

Re: not been paid by employer and fear they might be pushing for constructive dismiss

Has the union got back to you on this? I am frankly slightly surprised that they haven't got something sorted by now, even if it is just an interim payment by whatever that faster payment thing is called (I can never keep up with banking jargon!).

[leclerc]

Re: not been paid by employer and fear they might be pushing for constructive dismiss

Has the union got back to you on this? I am frankly slightly surprised that they haven't got something sorted by now, even if it is just an interim payment by whatever that faster payment thing is called (I can never keep up with banking jargon!).

It is faster payment . Most larger firms might do it by BACs and then have it taxed at 32% ie 20% basic rate plus 12% NI(I have seen this attempted before....