Take Your own Claim
Stage 1: ACAS: Early Conciliation
The first step, before any claim can be made to the Employment Tribunal, claim is to approach ACAS, the Advice, Conciliation and Arbitration Service, usually over the phone or internet, and ask for Early Conciliation. You have to get an Early Conciliation Certificate from ACAS before you go to the Tribunal. (This was introduced to stop simple claims, which the employer was prepared to settle, taking up Tribunal time.)
ACAS is itself a government body; and is free to use. If you are considering taking a Tribunal claim, you must first contact ACAS with
- Your name and contact details
- The employers name and contact details
- A brief summary of what your claim is for
- What you are looking for
There is a form on the ACAS website you can complete which covers this, but you do not have to use it. Generally, this is a simple procedure, largely handled over the phone or by email; and precise detail is not required. However, one point you must get right (or it may cause big problems later) is the name and address of your employer: see the advice below, in section….)
Typically, ACAS will contact your employer, your employer will say they know nothing about it and ask for more details; ACAS will get back to you, and so on. Eventually your employer may offer payment in full (rare!) or at least, offer a small amount. You are now in a negotiation: See the section below on negotiating settlements for further advice. Or the employer may never offer anything, just spin the process out. 6 weeks is allowed for Early Conciliation, but that can be extended by a further 2 weeks. So it can take months.
If your claim is complex or substantial, Early Conciliation is often a waste of time. The employer just drags things out by asking for more details and information about your claim. That just means they are better prepared when you do issue the claim.
If you think your employer is unlikely to make a realistic settlement offer, you do not have to go through the Early Conciliation process at all: you can just ask ACAS for an Early Conciliation Certificate and tell them you do not want them to contact your employer. If you do this, they will simply issue the Certificate to you (usually within a few days), without contacting the employer.
Early Conciliation and Tribunal Time Limits
There is a 3 month time limit for making a Tribunal claim (from the date of the action complained of); and you must contact ACAS within that 3 months. But once you have contacted them, time stops running for the Tribunal application; until the EC Certificate is granted; and the deadline is then extended for at least a further month to submit your Tribunal claim.
Example: you last worked for the employer on 10th March, and he has not paid your wages for February. He has also never paid you for the 2 night shifts a month you were expected to work for nothing – a condition of getting the job.. You would normally be paid on the 26th of each month. Your claim has to made within 3 months of the last action complained of.
That is unclear on these facts.. Payment for the 10 days in March was due on 25th March. So, arguably, the 3 months run from the 25th March (the date of non payment- the action complained of) and runs out on 24th June. You must contact ACAS on 24th June at the very latest. In practice apply as soon as you can: April would be sensible, to avoid delay.
Last minute applications cause problems. Even on this simple case, the employer might argue time starts running on the last day of employment:10th March ; or even from 25th February? So waiting to 24th June could be too late anyway: and could cause an argument that the Tribunal has to resolve at a separate Preliminary Hearing. You may well win on the time limit point, but it will have taken months to resolve. Apply early to avoid these problems.
Don’t Delay: Apply Early
Provided you apply before 25 June, you then have a further month – from the date ACAS issues the Early Conciliation Certificate – to apply to the Tribunal. A month seems a long time, but it soon goes: get the Tribunal Application in as soon as you can.
But there is no need to wait that long. Why not apply in April? Last minute applications cause practical problems as well. (the Internet is down; no one answers the phone; some crucial information is missing – the correct, full name of the employer??? The address of the employer: where you worked, or Head Office??)
Delay is a crucial weapon for the employer: they can hold out longer than you. The money stays in their bank account, and you need it more than they do. Delay softens you up: you can end up settling for a small payment, because you are desperate for the money, any money.
Tribunals can take months and years: Don’t Delay: Apply Early.
Stage 2: Submitting the Tribunal Application
The ET1 Application Form: ET1
Applying to the Tribunal has to be done on the Tribunal’s official application form: Form ET1. This is a complex form, running to 14 pages; and asking lots of questions. It takes time to assemble the information and complete the form. It will usually take you a week or more to compile the information required and draft it clearly, so start early. Start preparing at the same time as you are waiting for the Early Conciliation Certificate.
The ET1 Form can be found on the Tribunal’s website, and completed on-line; or you can download and print out a blank form, complete it and post it to the Tribunal. Keep a copy; and post it “Signed For” (at a Post Office) if you are sending a hard copy, so you can prove you have sent it, and when. Allow 2 days for delivery – the date it reaches the Tribunal is what counts, not when you sent it. The address is on the Tribunal web site.
Time Limits
There are strict time limits for submitting the Form: it has to reach the Tribunal within 3 months of the date of the action complained of: see the example above.
In some, very limited, exceptions, the Tribunal has power to accept a late application; but this is rare. If you are already out of time, take advice. (It is not enough just to say you did not know about the time limit until recently: you have to show you took reasonable steps to find out: Who did you ask? When? Why didn’t you look on the web? Language difficulties and ignorance are not in themselves enough to excuse late submission.)
It is best to complete Form ET1 fully, giving a full account of what happened and what you are looking for, but this takes time. There are a number of reasons why you should complete it fully:
- It is much easier to set out a clear account early, at the start of the case, when it is all fresh in your mind, than 6 months later when the Tribunal asks for your statement.
- If you leave key sections unanswered, the Tribunal will order you to provide the information requested before the case goes further, so you have to answer anyway. And if that takes you over the 3 month deadline, the claim could be dismissed as out of time.
- It makes the employer take the case seriously; and so they may make a realistic early settlement offer, before they incur significant legal costs in preparing a defence.
- It is the document the Tribunal works from, at every stage, so mistakes or a skimped answer can damage your credibility later.
- It is the document read by the Tribunal members at the start of the Tribunal hearing, so setting out the case fully and clearly makes a good impression.
When completing the form, don’t exaggerate and stick to the truth. If you are unsure, say so: “I do not know the exact date, but I think it was early August” is much better than saying “On 10th August …” and then (when it turns out it happened on the 9th ) being shown to be wrong. “I am setting out my estimate below of what I am owed in unpaid wages; but I cannot be completely accurate as I do not have access to the full pay records. I will supply a fuller account when my employer discloses my pay records”.
As the claim progresses through the various stages, there are lots of opportunities to add further information and detail; and to change things if it emerges you got something wrong, but the less you have to correct, the stronger your credibility overall. (See the section below on “Amending the Claim”.)
Last Minute Applications
If you have left it to the last minute and are up against the 3 month deadline, ring ACAS straight away for Early Conciliation. That phone call can get you at least another month.
If you are just running out of time and can’t complete the Form correctly, an incomplete Form is better than none.
(If the difficulty is with understanding or writing English, say so. The language of the Tribunal is English. Explain there are language difficulties, and that you have not been able to get advice or an interpreter to help. The Tribunal will provide a free, official, interpreter for any hearing if you ask them to, but not for the earlier stages.)
The Form must contain as a minimum:
- Your full name and address (section 1.2, 1.3, 1.6)
- The Employer’s name and address (2.1, 2.2)
- The ACAS Early Conciliation Certificate number (2.3)
- The claims you wish to make (eg Deduction from Wages, National Minimum Wage underpayment, Holiday Pay, Unfair Dismissal, Race Discrimination ….), (section 8.1)
- giving some brief details and dates for each claim (8.2).
For example, “I was underpaid by several hundred pounds …; I only had 2 weeks holiday pay….” If you do not know the exact dates, give an indication: “at some time in June 2023”, “in early 2024” …).
Explain why you are applying so late: that you have only just realised you could apply (if that is true), or that you have only just learnt of the time limit, and you will provide full information as soon as you can.
Step by Step Guide to Completing the Application Form ET1
Section 1. Your Details
These are straightforward. Complete as much as you can.
1.9 is important: email or post?
Email is quicker, simpler, often more secure and reliable than post. But Post may be better.
As the case progresses, the Tribunal will send you longer and longer, technical, detailed documents, which are very difficult to read and process on a phone. You will also be sent bundles of documents – perhaps 100 or 300 pages of pay records, rotas, timesheets and so on. You cannot read these or process them as email attachments unless you have a laptop to read them, and access to a printer to make hard copies. If all you have is a mobile phone, it will be really hard for you to access these crucial documents. You have to be able to read them, to spot where they are inaccurate, to analyse them. This is very hard to do unless you have at least a laptop; or better still, a printer.
If that will be difficult for you, then ask for post so that you get hard, paper copies of everything. You can then copy them easily: and you can take a screen shot and send them digitally if need be. You will need hard copies for the hearing in any event. Just make sure you give a secure postal address, and tell the Tribunal if it changes!
1.11 Phone hearings are often easier and quicker than having to attend a hearing. They are used for preliminary or other short hearings; not usually for the final, main hearing.
Section 2. Respondent’s details
The Respondent is the employer – the person who has to “respond” to the claim.
2.1 and 2.2: Name and address of the Respondent: the Employer’s name and address
First, the names and addresses on the ET1 must be the same as on the EC Certificate. (see below for a discussion of this issue.)
Identifying your employer is usually straightforward. Their name should be on your pay slip or written contract or letter of appointment – if you have any of these!
In law, your employer will usually be either:
- an individual: for example Mr John Smith, Ms Pauline Brown.
- a group of people – a partnership: farms, for example are often run as a family partnership.
- a company – P. Jones and Co, or Peter Jones Ltd.
- a public or statutory organisation: These come in a huge variety of forms: a local Council, a school (where the Academy Chain is usually the employer); a branch of the NHS – a Hospital Trust, for example.
It is important to get the name right: you may only ever have met and dealt with Mr Singh, but if his business, where you worked, is Singh Butchers Ltd, then you must take the claim against the limited company, Singh’s Butchers Ltd, not against Mr Singh personally. Check the name of a business on the Companies House website: you will be surprised how many very similar names there are for businesses. If you can’t find the business name there, then it is likely the name is just a “Trading Name” for a business actually owned by an individual or a partnership: it is the individual or partner who is your employer.
If you get the name wrong, it may not matter. If the address is right, the employer will often send in their Response, using the correct name, and the Tribunal will simply change it; but problems can arise, particularly with employers who are trying to avoid claims.
If the employer is a company, you can give the Registered office address, available on the Companies House website, in …… and your workplace address in ……… .
If Identifying the Employer is difficult:
The employer is legally obliged to tell you their name and address; and if it is unclear, do the best you can: you may want to name two or three possible names and explain you do not know which was actually your employer – they never clearly told you. The Tribunal will usually send the papers to all three, and they can then sort it out between themselves and identify the employer when they send in their defence, the Response.
If all you have is a name, and no address, taking the case further may be impossible. If you have a name, you may be able to get the address from the Companies House website if there is a company with that name: but there are often several companies with the same name! If the employer is deliberately concealing their identity, you have to try some detective work. Is there someone in the office you could ask? Or a business or supplier that trades with them? Is there a name posted up anywhere in the office? Do any of the other people who work there know the name? Can you get someone else to ring up and find the name for you?
The name has to be the same as the name on the Early Conciliation Certificate, or the Tribunal will reject the claim. If you told ACAS the name was John Smith Farmers; and you then find out they are actually a limited company, John Smith Farmers Ltd, and so submit the claim to the Tribunal against the limited company, the Tribunal are likely to reject the claim: the names do not match. You may have to go back to ACAS for another Certificate, if there is still time – the 3 month limit still applies.
Even if out of time, it might be possible to argue it was “not reasonably practicable” for you to find the right name earlier – if the name on the letter or pay slip, for example, was just John Smith Farmers – and so a late claim might be allowed.
Alternatively, you could submit the Tribunal claim naming John Smith Farmers as the respondent, to match the EC Certificate; the Tribunal will then accept the claim and send it to John Smith Farmers. In most cases, the employers will ask the Tribunal to amend the name to their correct legal company name, John Smith Farmers Ltd, when they return their Response.
Agency Work
One common issue for refugee and migrant workers is agency work. In most cases, your employer is the agency, who send you out to another business to work there. If you are unsure, the simplest way to check is who is paying your wages: if it is the agency’s name on the pay slip, then they are likely to be the employer. If in doubt, name both on the Application Form, ET1, and let them sort it out between them.
2.3 The ACAS Early Conciliation Certificate number.
The Tribunal has to reject your claim if you do not have the number, or the names do not match.
2.5 to 2.8 Unless you are naming more than one respondent, you can ignore these.
Section 3 Multiple Claims
If you know of other employees making similar claims against your employer it is helpful to complete this section, as the Tribunal can then consider whether to join the cases so they are heard at the same time. It may be useful to approach other employees and encourage them to take claims as well. Facing a number of claims can put a lot of pressure on the employer to settle.
Section 5 Employment Details
Answer as clearly as you can. On paper , if you don’t know the date, you can write in “Early 2023” or whatever.
Section 6: earnings and benefits
Fill in precise details if you have them. Otherwise put “average” or “estimate” or “varies between”. You can explain how the amounts and hours varied in section 8.2, Details of the Claim.
Section 7 What has happened since?
The Tribunal wants to know about new employment and pay, but not benefits.
In 7.2 and 7.3 if the new job is casual or temporary, say so if you can.
Section 8.1 Type of Claim
Most of our clients, with claims for unpaid wages and holiday pay should tick the box by “I am Owed”, and then the 4 boxes underneath: “notice pay, holiday pay, arrears of pay (arrears means an underpayment), and other payments”. (But read the Warning about Breach of Contract claims, check here to read more about the warning) before you tick Notice Pay, as a claim for Notice Pay is a claim for Breach of Contract.)
And tick the box for “I am making another type of claim which the Employment Tribunal can deal with”; and in the box list all of the claims you are making:
- Underpayment of National Minimum Wage
- Failure to provide written statement of terms and conditions
- Failure to produce Pay Records for inspection: section 9, 10 and 11 National Minimum Wage Act
- Outstanding holiday pay: Working Time Regulations and unlawful deduction from wages
- Deduction from Wages
- Failure to provide itemised pay slips
- Breach of contract – the term that says I should be paid for work done, since I have been underpaid. (Read the Warning above before you claim for breach of contract.
If you are making other claims as well, for example discrimination or unfair dismissal, then tick those boxes as well.
8.2 Details of the Claim with dates.
This section must be completed for each claim; so list whichever claims you are making and put the details underneath.
(There is an example to help you here)
The more relevant information you can give the better. If you simply put “Estimated wages owing : £1,450”, the Tribunal will accept the claim but are likely to order you to provide a detailed explanation and worked calculation. It avoids delay and helps the employer realise they have to take the case seriously (which can lead to a serious offer to settle), if you set out the amounts claimed here, or below in 9.2.
You have plenty of space to set out detail; and, if you need more space, can continue in section 14; and you can put detailed calculations of the amounts claimed in the next section 9.2.
Section 9: What do you want if your Claim is successful?
9.1: only applies if you are claiming Unfair Dismissal or Discrimination
9.2 What compensation are you seeking?
Tribunals often refer to the calculation of the amount of money you are claiming as “Schedule of Loss”, and it is helpful to put that here, as otherwise they may order you to produce one!
List each claim, and underneath set out the calculation, indicating whether it is precise or an estimate or average. It may be sensible to put a general disclaimer at the start: for example
Schedule of Loss
This schedule has been produced from my own records of pay and hours worked as best I can. I need to see the employer’s full records before I can make a precise calculation and I note what is said above on the form: “you will be permitted to revise the sum claimed later”.
Unpaid Wages and National Minimum Wages Claims
I was paid for 8 hours a day, 8.00 am to 5 pm, with an hour for stoppages, at the NMW rate 10.44 ph.
However, on average, I estimate I worked an additional hour a day unpaid and unrecorded. It was usual for us to be required to work an extra 15 to 30 minutes at lunch time a week; and to be held back at work up to half an hour in the evenings before being released. I claim for at least one hour a day for each of the 5 days I worked during the 32 weeks I worked, from May 23 to December 23.
1 hour at £10.42 for 5 days = £52.10 per week x 32 weeks = £1,667.20
In addition, I worked at least one evening shift of 4 hours in each month of May, June and July, unpaid
3 shifts x 4 hours at £10.42 = £125.25
Total £1,792.45
Holiday Pay
I have had no paid holidays since I started.
A day’s pay of 9 hours (including the unpaid hour) is 9 x £10.42 = £93.78
I have worked for 8 months, 2/3 of year.
2/3 of the annual paid holiday entitlement of 28 days is 19 days.
19 x £93.78 = £1,781.82
Failure to disclose NMW records section 11 NMW Act
80 x NMW rate: 80 x £10.42 = £833.60
Failure to provide written statement of terms and conditions
4 week’s pay at (5 x £93.78) = £1,875.60
Total Claim £6,283.47p
The Settlement Trap
But settlements can be a trap for the workers involved: a settlement is usually based on a promise to pay. But enforcing that promise – getting the money in your bank account – can itself take months to enforce; and in some case may never happen. Big employers will usually pay up. But small employers may just disappear, or close the company (and start up again as a different business), or just keep fobbing you off ….. You may never get the money.
To avoid this, we advise you make any settlement conditional: you will only agree to settle the case once payment of the agreed sum (which is often a lot less than you are claiming) is paid in full before you tell the Tribunal the case has settled or withdraw the claim. Employers don’t like doing this: they want the claim settled or withdrawn before they part with the money. See the section below for advice on how to negotiate this.
Right to Inspect: Detail
Provided you said in the letter that you would bring someone with you (you are not required to say who), you can take whoever you like with you to the inspection. The Act imposes no restrictions “such other person as they worker may think fit”: that could be anyone: another worker, a friend or family member, an advisor, someone helping you – whoever you like. If they refuse to let your companion in, leave. They have refused to allow you access within section 10, and you can claim to the Tribunal.
Take a pen and paper to make notes of what the records show; or, better, take your mobile phone and photograph every page that is relevant: the right is to “inspect … examine … and copy”.
You should be able to inspect all the records which show how much you should be paid. These will include at least:
- The rota or shift allocation which sets out the days and shifts and hours you had to work
- The record/timesheet of your actual hours worked, on the particular day or week or month …(usually made at the time, shift by shift, day by day)
- The pay rate , including any variable or extra element – overtime, travel time ..
- The calculation of gross pay (before any deductions for tax or national Insurance, expenses …),
- Any deductions that have been made, with the reason (tax, overpayment, loan…)
- The net pay: what you actually received.
- Payslips, which may set out the information above.
If the records are produced to you, you can then make the precise calculation required for the claim.
Employers usually only have two possible defences:
They either claim no request was made (so hand deliver it, or send it in the post “Signed For”), so you have a record of delivery:
Or that you were allowed to inspect. Often they say this, but the full records necessary to work out the amount were not made available: payslips were produced, but not time sheets, for example.
Submitting the ET1
If you submit on line, you get an automatic acknowledgement. If you post it, pay for it to go “Signed For” (at a Post Office) and then track when it is delivered.
You should hear from the Tribunal within a few days: if you haven’t heard after a week, call the Tribunal and ask where your application is.
The Tribunal’s Reply.
This will normally confirm the claim has been accepted and given a case number. Keep a note of the number: you will need it whenever you ring up or write tot eh Tribunal.
If the claim has not been accepted – no ACAS number, for example, or the Application Form is incomplete – then act quickly to send them whatever is required.
Dealing with the Tribunal
Comply as best you can with their Orders and Directions. If you can’t comply, or just don’t understand them, let them know: ring them up and explain the problem, or send them an email. (Keep a note of any calls: date, who you spoke to, what was agreed …)
Don’t just ignore the Tribunal: keep them informed. This matters because if you miss deadlines and don’t tell the Tribunal, your claim may be “Struck Out” – dismissed and closed. So if you are going to miss a deadline, tell them in advance, explain why and ask for another 2 weeks, if that would enable you to comply. If you can’t comply at all, explain why. If you have already missed the deadline, apologise, tell them why and when you will be able to comply.
You should copy any emails or letters to the Tribunal to the Respondent.
Cooperating with the Tribunal can be crucial, especially if the Employer (the Respondent) is ignoring them. If you have complied with the Tribunal Orders and it is the employer who is delaying matters, the Tribunal may strike the Response out; and give Judgment for you! If you are also in breach, they may just strike out the whole claim.
The Tribunal will often:
Give a Hearing Date. This may be months away, but check it: if you plan to be away then, write and ask for another date. Don’t book holidays for that date!
Tell you the Claim has been sent to the Respondent, and they have 4 weeks to send their Response.
Sometimes there will be other Orders or Directions as well: for example
“The Claimant” (you!) must supply full details and worked calculations showing how the amount claimed as unpaid wages is arrived at, by no later than 17 October …”. Get started now and send the calculation before the deadline; if you can’t comply for some reason, at least write and explain why and give a date when you will comply.
The Response
The Respondent – your employer – has 4 weeks to send the Response in, so you normally get it form the Tribunal around 5 weeks after they acknowledged your Claim.
No Response.
Quite often, employers ignore the Tribunal, and don’t send a Response. If the employer doesn’t send anything in, the Tribunal may give them a bit more time; or may simply decide the case in your favour! This is called a “Default Judgment” – a Judgment given in default of a Response. (If the Employer can’t be bothered to defend it, why should the Tribunal bother to hear it? They just rule in your favour.)
This is another reason why you should complete the Application Form fully, spelling out what you want. If you have just claimed “unpaid wages”, but not said how much, the Tribunal can’t give a Judgment ordering them to pay you the money because they don’t know how much you want. Instead, you’ll be asked to supply the calculation; or maybe they’ll fix a hearing to ask you explain it at the hearing.
Analysing the Response
- Check it carefully. What do they dispute?
- That they employed you at all? Or not for the period you have claimed?
- Do they dispute owing you any money; or accept some is owed , but not all?
- Have they put a defence in to every claim you made? Or ignored some of the claims?
If the Response is just a general denial: “All money due has been Paid”, you can ask for more details.
What do they say was paid?
Why that much?
What was the calculation?
Send me the pay records.
Send a letter to the Respondent asking for the information you need their understand their case; give them 14 dyas to reply; and, if they don’t , write to the Tribunal, attach your earlier email, tell them you have had no reply, and ask the Tribunal to Order the Respondent to reply. (see examples, below …)
But often, the Tribunal will itself have made Orders requiring both parties to supply further information.
Case Management Orders.
These are Tribunal Orders which may be made at any stage, to the parties to manage the case, and to prepare for the hearing. Failing to comply with an Order can mean the Tribunal may Strike Out all or part of your case.
For example, if you have sent in a calculation of your wages claim as ordered, but haven’t sent the calculation of holiday pay they asked for, the Tribunal could strike out the holiday pay claim, but let you proceed with the wages claim.
The same goes for the Respondent, if they don’t comply. Usually the Tribunal will give a warning before they strike out; and they will always consider letting you back in, if you send the information in quickly, with an explanation and apology, where you have missed the deadline.
In a complex case, where there are several claims, or it is unclear who the Respondent is, the Tribunal may order a Case Management Hearing to make the Orders.
Case Management Hearing
This is usually a 2 hour hearing with a Judge, over the phone, to go through the issues in dispute, identify what each party’s position is, and to give further detailed information and preparation.
Typical Case Management Orders
Discovery or Disclosure of Documents
Discovery and Disclosure are the legal terms for ordering a party to send the other relevant documents. Each party is entitled to see the other side’s documents before the hearing, so they have a fair chance to prepare. That’s the principle, but often doesn’t happen in practice. Employers may only produce the key documents at the last minute, even during the hearing itself. You will be in a much stronger position to protest about this at the hearing (by arguing it is unfair to you to produce the documents at this, late stage), if you have disclosed (sent your documents) to the employer in good time, as ordered. So don’t keep documents back yourself. Send them all.
So you have to send your documents (pay slips, Bank statements, rotas, emails and texts about your hours or pay, Whats App messages … whatever you have that is relevant) to the employer. If it is 100 pages, copy and send 100 pages. (Always keep a copy, so you know what has been sent.)
Send the whole chain of messages, so that they can be read in context. It is much harder for an employer to argue that you have been selective, and the message relied on by you is taken out of context, if you have supplied the context; or to argue that the message has been fabricated, if you have supplied the whole chain. If that makes it 200 pages, send 200 pages.
(if this is starting to sound to you as if we don’t trust the employer, you’re right. Our experience is that employers who cheat you out of the National Minimum Wage are not trustworthy; they have lied to you, and may just as readily lie to the Tribunal.)
Disclosure by List.
The Tribunal may Order Disclosure by ordering you to send a List first :so you have to produce a detailed list of each document: date, who from and who to, and what is was about. It is a lot of work, but you have to do it anyway, even if you are just ordered to send the documents. If you don’t List them all, before you send them, you don’t have a record of what you sent; and can’t complain if the respondent doesn’t include them all in the Hearing Bundle (see Below.)
Getting the documents is usually at the heart of any case for wages or holidays. It often takes a lot of time, so get on with it: start now!
Sending the Documents: Send Digitally or on paper?
In a simple case, a claim for a week’s wages, digital may be fine. Sending electronically is easier, and is certainly quicker. But in anything more complex, digital can be really difficult. Can you send 100 pages from a mobile phone? If the respondent’s bundle is 200 pages and they send you that digitally, can you open the attachment? Do you have Drop Box?
It is often much better, at all stages to ask for and send (“Signed For” at a Post Office, so you have proof of delivery) paper copies. If you have (or know someone who has) good laptop and good Word or Office skills, digital is easier; but for most people, paper copies are necessary. The difficulty is making the copies off your mobile or device in the first place; and then making a second set – one for you to keep!
In practice, you are going to have to get the documents copied (through a phone or copy shop, if you have to) onto paper for the hearing; and it is probably easier to do this early in the case: now, if you haven’t already done it. It may cost you: £20, £50, or £100 at a copy shop…. But if your case is good, could win you thousands.
It is also much easier for you (and for us!) to analyse the documents on paper; and to identify the key documents so that you can present a clear argument to the Tribunal, showing the relevant pages that prove you were underpaid. It is no good standing at the Tribunal hearing and saying: “It’s all on my phone”. They won’t look at it. Your case just got lost in the Cloud!
Analysing the Respondent’s Documents
In many cases, they will send you very little; and what there is, will often support their case. The payslips, for example, will show that, for the hours worked each month, you were paid National Minimum Wage.
But where are the time sheets to prove the hours worked?
- If they have sent them , are they the ones you signed?
- In many cases, they may not have disclosed (sent to you) the actual records at all, just a printout they sent to the payroll agency, at best.
- Where are the original timesheets from which the printout was compiled?
- What else do you want to see that they have not disclosed
Chasing the Documents
You have to identify and ask for the missing documents (which, by law, the employer must keep: the PAYE system for paying wages, enforced by the Inland Revenue requires this; and the last thing an employer wants is an Inland Revenue investigation: the Revenue can Order them to pay National Minimum Wage, not just to you, but to everyone). (An example of such a letter is below …)
The gaps in the records disclosed are often the most revealing. Give them 14 days to reply to your letter, and then, if they haven’t supplied all the documents you asked for, write and ask the Tribunal to make an Order for “Specific Disclosure”: specific because you are specifying the particular documents you want: time sheets for the 4 months you worked there, for example; or the rotas that showed your shifts and hours; or … You can point out the employer is legally obliged to keep these records. (Examples of requests are given below.)
The Tribunal will expect the employer to have the documents; and will expect the employer to disclose them; and to have and disclose the originals, from which the payroll records were compiled. If they don’t have the records, that can win you the case. (Again, an example letter is below …)
You may never get a reply; and the employer may nor reply to the Tribunal Order, either. But that is how you may win the case: if they can’t produce the records (and many small employers have no records – or none they dare produce!), then they cannot prove they have paid you: and under section 28 of the National Minimum Wage Act, they have to prove they paid you properly: they can’t do that, without the documents. The Act puts the “burden of proof” onto the employer. Moreover, if they don’t reply to a Tribunal Order, the Tribunal may simply strike out that part of their Response – so they can’t defend the part of the case that claims for unpaid wages.
So send the requests and apply for the Order.
Keeping the pressure on employers in this way also keeps the pressure on them to make a realistic settlement offer. Effectively, you are highlighting the weakness of their case: so settle now! They do not want the Inland Revenue involved!
It doesn’t matter so much if your own records are not complete. Very few employees keep all their payslips, let alone timesheets. After all, you didn’t know you were being cheated at the time. And, unlike the employer, you are not legally obliged to keep records. So if your estimate of what you are claiming is detailed and realistic, the Tribunal are likely to accept it, even without the documents to prove it.