Is failing to pay salary as per the contract a breach of contract

[Benny the Beagle]

I have been working with a company since last August.

In my contract it clearly states that 'Your salary will be paid in areears by bank credit transfer by the last day of each calendar month'.

To date even after numerous complaints I am still paid on or about the 9th to 12th of the folloing month.

Now I would have assumed tat they could alter my contract as long as I agreed, but they have never done so.

I want to know if this constitues a beach of contract on the part of the employer and if so can I use this to get out of a 2 month notice period, as I want to move on

Many thanks for any assistance, :beagle:

[Amethyst]

Re: Is failing to pay salary as per the contract a breach of contract

In arrears could be the previous month (eg you work June, and the contract says you get paid by the end of July) and 9th to 12th is by the end of the month following the month you worked.

I know that's not what it meant when it was written but they could feasibly argue it ?

A 2 month notice period seems excessive for having worked just 1 year. If you are paid monthly your notice period should really be 1 month.

[Benny the Beagle]

Re: Is failing to pay salary as per the contract a breach of contract

Many thanks for your response every little helps and I know you are just trying to play Devils advocate but monthly in arreas at the end of the calender month means just that and the only problem is that they have never paid anyone on those terms but its in the contract??

Also I have been led to belive that the following is also unenforcable ( I refrain from using the term illegal as this smacks of criminal)

'Should your employment cease for any reason you are bound not to seek employment with any of the company’s existing customers or competitors for a period of at least 6 months unless agreed in writing by a director or the Chairman'

The point I am trying to clarify is that if the contract itself is flawed in any way then does a contract actually exist, thater like its a waste of time insuring your car but not taxing it as your insurance is invalidated by the lack of a valid tax disk..

:beagle:

[Sapphire]

Re: Is failing to pay salary as per the contract a breach of contract

Many thanks for your response every little helps and I know you are just trying to play Devils advocate but monthly in arreas at the end of the calender month means just that and the only problem is that they have never paid anyone on those terms but its in the contract??

Also I have been led to belive that the following is also unenforcable ( I refrain from using the term illegal as this smacks of criminal)

'Should your employment cease for any reason you are bound not to seek employment with any of the company’s existing customers or competitors for a period of at least 6 months unless agreed in writing by a director or the Chairman'

The point I am trying to clarify is that if the contract itself is flawed in any way then does a contract actually exist, thater like its a waste of time insuring your car but not taxing it as your insurance is invalidated by the lack of a valid tax disk..

:beagle:

Hiya

This is known as a 'non compete clause' its used widely by companies to protect their businesses. In fact we do exactly the same, except ours is for 12 months with our staff.
Also our business is a franchise and part of 42 offices in Britain, and I know that each franchisee signed a similar clause too, I have known that someone who had another office was 'let go' and started up on their own within days, as far as I know nothing has been done about it so far, but as we all know legal things can take a good while before action is finally taken and I have heard through the grapevine that legal proceedings are being prepared.
What I am trying to say is that whilst the clause may not stand in your case, you would be taking a big chance by going with one your companies customers/competitors, so I'd think seriously before making that move.

Also re your wages, have you actually asked them why yours are always paid late ?

[Amethyst]

Re: Is failing to pay salary as per the contract a breach of contract

http://www.bailii.org/ew/cases/EWHC/QB/2008/1388.html

also

William Hill Organisation Ltd v Tucker [1998] EWCA Civ 615 (2 April 1998)
http://www.bailii.org/ew/cases/EWHC/Ch/2010/1178.html

might be interesting (might not be mind it's not a clear cut issue - the business restricting you would have to show it is reasonable and that you are being compensated for it appropriately)


Regarding the payment dates

they have never paid anyone on those terms but its in the contract

I would have thought the actual term (end of calendar month) would over rule the implied term (9th ish of month), but I can't see how that would enable you to claim breach of contract to get around the 2 month notice period and the restriction clauses.

[shamen]

Re: Is failing to pay salary as per the contract a breach of contract

If they say payment in arrears at the end of the calendar month then they have to pay you at the end of the calendar month the work was done. Paying it in the next month is a no no. Paying it a week or two late is called 'witholding of wages' and there is a three step process to resolving (per the CAB)

- Informal chat with employers to resolve
- Failing that, a formal grievance in writing (id send it via post, recorded delivery)
- Failing that bringing resolution you can go to tribunal (speak to ACAS about that)

If the employer tries to dismiss you at any point during a formal complaint that can easily be viewed as unfair dismissal (unless you have done something seriously wrong during that time).