1) Contact your employer to ask for your money
If you think you are owed wages the first step is to contact your employer. It is best to do this in writing (via email or letter) so that you have evidence that you have requested they pay you what they owe. It is also best to put a time limit when you expect a response such as “Please reply within 14 days of the date of this letter” or give yourself a reminder to chase the employer within 14 days. If you are a trade union member speak to your representative who can usually resolve these problems. Research by Unpaid Britain has found that many employers (especially when it comes to holiday pay) have a “don’t, ask don’t get policy”, and will pay once confronted. If you do not feel comfortable writing to them, seek advice from your local Citizens Advice Bureau (CAB), trade union or law centre who may be able to help you write it or give you advice on how to go about doing this. If you think that you are being paid below the National Minimum Wages (NMW), you can contact the NMW Inspectorate through ACAS.
2) Seek advice and contact ACAS
If the employer still doesn’t pay up after receiving your formal request, seek advice from your local CAB, trade union, law centre or the Advisory, Conciliation and Arbitration Service (known as ACAS). ACAS provide advice and arrange settlements between employers and workers, they can be contacted on 0300 123 1100 (lines are open from 8am-8pm). The TUC Work Smart Website, CAB, Gov.uk, ACAS and trade union website have lots of useful information, which you should consult before taking your claim further (see web addresses given at the end of the leaflet). Make sure you have any information regarding your complaint with you such as contract, letter of appointment, pay slips and any records you have of hours worked even if it is just a note in your diary. At this point your trade union may contact your employer to negotiate and get the money. If your employer still does not pay you will have to contact ACAS this is because a legal claim cannot be perused until you have started what is known as early conciliation ( see below). ACAS will contact your employer if you agree and attempt to reach a settlement. It must be noted that ACAS’s role is to be a conciliator and reach a settlement. ACAS does not and cannot enforce your rights. Research has shown that where an ACAS settlement has been reached 94% get paid the agreed sum in full. Where a settlement is not reached ACAS will give you an Early Conciliation Certificate that is needed to take a claim to an Employment Tribunal (ET).
3) Taking the claim to an Employment Tribunal
You have three months less one day from when the payment was due (or if there are a series of payments due the last incident of non-payment occurred) to take your claim to ET. For example if wages were due but were not paid on 30 October the deadline for lodging a claim in the tribunal would be 29 January. You must contact ACAS before the time limit expires. To register a claim at ET seek advice from advice from your local CAB, Trade Union or law centre (although you can proceed on your own).
You will have to fill out an ET1 form which has to be handed in together with the ACAS Early Conciliation Certificate number and the ET fee .Making a claim at ET can be costly. For wages there is an ‘issue fee’ of £160. If the claim goes on to a hearing an addition £230 ‘hearing fee’ must be paid. If the claim includes other issues such as discrimination the fee will be considerably higher. Exemption from fees is available to a limited number of people meeting strict savings and income criteria (more information on fee remission can be found http://bit.ly/2e4kaFx). In some cases where you are a trade union member the trade union will pay your fees.
Research has found that many ET claims do not go through to a final hearing and are “dismissed upon withdrawal”. This is often due to a settlement being reached between the parties. Many employers will wait until the hearing fee has been paid before settling. You can ask that the employer pay the fee as part of any settlement on the basis that a tribunal would order the employer to pay the fee in a successful claim. When a settlement is reached it is also more likely that you will get the money you are owed.
4) What does going through ET involve?
You can choose to represent yourself or be represented by someone else (trade union representative, a lawyer or a friend with knowledge of employment law). Some more complex claims will need to go to a preliminary hearing before the main hearing (for example when your employment relationship is unclear). When this happens the outcome may be decided there and then, or a hearing date will be set. Once the claim is submitted both you and your employer (or your representatives) will be asked to submit evidence and share the information with each other. If your employer does not provide a response or defence against your claim you may win the claim outright. This is called a default judgement, however in such cases many claimants do not get their money as the employer may no longer be trading. However where the employer is insolvent and you have judgement from the ET you may be able to recover some money from the National Insurance Fund. More information is available from the statutory payment disputes team on: 03000 560 630. If you win your claim at ET, the ET will order your employer to pay you a specific amount of money. Where your claim fails some employers are known for claiming their legal expenses. Hence it is very important to get professional advice regarding your case’s merit.
5) What to do when ET has been won but money has not been paid out
If you win at the ET you will not necessarily get the money, as the ET’s power in this area is limited and recovery has to be referred to a higher court if employers fail to pay. Research has shown that where wages cases have been won only 37% of claimants received all the money they were owed.
If the employer has not paid the money after 48 days you can fill out a Penalty Enforcement Form which can be sent along with the ET judgement to the Department for Business, Energy and Industrial Strategy ET penalty enforcement team, who will contact your employer with a notice to pay.
If the employer still does not pay out you can use the Fast Track scheme where a High Court Enforcement Officer (similar to a bailiff) will be sent to demand payment from the employer. The fast track scheme requires you to pay £60 (which will be given back if the employer pays out) and fill in the Fast Track Enforcement Form. When enforcement mechanisms such this were used the research found that the percentage of people that received money went up to 56%.
However, it must be noted that if the employer has no assets, doesn’t operate within the UK or has become insolvent you will not be able to get the money from them. You should seek advice from your from your local CAB, trade union or law centre about what to do in these situations.
6) Making a claim at county court
If you have not received your money after following the steps in sections 1 & 2 above, where your claim is a pure wages claim and you know the exact amount of money you are owed (or you are deemed to be ‘self-employed’), you may take the small claims route through the county court. Again it is recommended that you seek advice and attempt to get your money by contacting your employer first. Unpaid wages are considered a “breach of contract”, giving you a time limit of up to six years to make your claim at county court.
Small claims must go through a central money claims centre. You must fill out a N1 form in which you state the exact amount owed. Money claims can also be made online (recommended) for an exact amount under £10,000. Again with this route a court fee ranging from £25 (for claims under £300 made online) up to £455 (for paper claims for £5,000 to 10,000) must be paid when the application is handed in. The court will send the claim to your employer who will be expected to pay or make an arrangement for paying you your money back in installments. They are given 14 days to accept your claim, they can however choose not to, and defend themselves, or can even make a counter-claim against you. It is important to seek professional advice from your local CAB, trade union or law centre on how to proceed in this situation.
7) Advice and links for further information
We advise that you always seek advice from your trade union (if you are a member or if you join one), local CAB, law centre or ACAS. Their advice is free (in the case of trade unions to members only), and will be able to advise you on your particular situation. The majority of claims do not go as far as court, as employers will often settle once challenged.
You can always call the ACAS workplace help line 0300 123 1100 (lines are open from 8am-8pm). Please find some links that you might find useful below.
- Acas ‘Where to get information on employment tribunal fee remission’ http://www.acas.org.uk/index.aspx?articleid=4487
- Citizens Advice Bureau ‘Rights at Work’ https://www.citizensadvice.org.uk/work/rights-at-work/
- Citizens Advice Bureau ‘Employer withholds your pay’ information sheet: https://www.citizensadvice.org.uk/Documents/Advice%20factsheets/Employment/e-employer-withholds-your-pay.pdf
- Citizens Advice Bureau ‘Advice Guide: Holidays and holiday Pay’ https://www.citizensadvice.org.uk/Documents/Advice%20factsheets/Employment/e-holidays-and-holiday-pay.pdf
- Citizens Advice Bureau ‘Getting paid when you leave a job’ https://www.citizensadvice.org.uk/work/rights-at-work/pay/getting-paid-when-you-leave-a-job/
- Gov.uk ‘Calculate holiday entitlement’ https://www.gov.uk/calculate-your-holiday-entitlement
- Gov.uk ‘Make a claim to an employment tribunal’ https://www.gov.uk/employment-tribunals/when-you-can-claim
- Gov.uk ‘5. If you win your case’ (includes advice if you don’t get your money) https://www.gov.uk/employment-tribunals/if-you-win-your-case
- ‘Employment claims in the civil courts’ http://www.workingfamilies.org.uk/articles/employment-claims-in-the-civil-courts/
- TUC WorkSMART: Pay and Contracts https://worksmart.org.uk/work-rights/pay-and-contracts
- TUC WorkSMART: Enforcing Your Rights https://worksmart.org.uk/work-rights/enforcing-your-rights
- TUC WorkSMART: Know Your Rights https://www.tuc.org.uk/know-your-rights