Let down by my nail tech

[Little Clarky]

I know this isn't really nail related but wasn't sure where to post it. I have a nail tech that has worked for me for a couple of months and was on a three month trial so as yet had no contract. She was paid weekly and worked a week in hand. On Boxing Day I get a text saying see doesn't want to work any more and wouldn't be in the following day or the next. She left me right in the proverbial. I know even with no contract she is legally obligated to give a weeks notice, so if she doesn't what can I do. Do I still have to pay her the week in hand? She is demanding to be paid tomorrow but my accountant who normally deals all this stuff is shut over xmas so I can't get any advise or a p45 sorted. Any info would be gratefully received

 

[Chrysalis]

Hi I think she can leave anytime, check the ACAS website. She can't demand payment as clearly your accountant is closed so ignore that. Again have a look on ACAS for further legal employment advice.

 

[MissyMuffin]

From my HR training this is what I'd say...
The absence of a written contract is neither here nor there. You can't get out of anything by saying someone is on a trial period, they are still legally employed from day one and have proper entitlements. They still have to be given written t&c's within 28 days. If you don't, no matter, they still apply.
You can't withhold payment, you have to pay her for what she's worked but only on the regular pay day, she can't demand to be paid sooner. The P45 should be produced and handed over after her final pay day. She should have given one week's notice as standard employment law so you have the right to wait for that notice week before processing her pay (if that makes sense).

 

[shedunlop]

I don't think many people know employment law and by telling her she was on a trial and not providing her with a contract for that period or and terms and conditions of work she probably thought she could just leave whenever she wanted to.

She should have known she was leaving you in the poo but there is not much you can do really as you cannot force anyone to work their notice period anyway. Was she doing ok or was she struggling as this may have a lot to do with it?

 

[princessamie]

If she's worked for you for more than one month, she should really give a weeks notice but there's nothing to say she absolutely has to. She's only legally entitled to payment for hours worked however, if her leaving has incurred costs for your business (loss of income etc because she's not working), because she hasn't worked, you may be able to deduct that from her final pay.

Maybe you could deduct some money from her final pay (if she's actually owed any) and tell her you're holding it whilst you get some legal advice?! Then, you're covered (ish) if she does 'owe' you for not giving notice but she's getting some money.

Only if she's owed it for hours worked though, don't be paying her if she hasn't earned it!

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[MissyMuffin]

You can't withhold payment except for any annual leave she may have taken which she hasn't accrued (by the way you have to pay her accrued leave), but you can say that she has taken it as part of her notice period.
If you want to be allowed to make deductions then you should put it in a contract but even then you may be on the wrong side of employment law. How do you prove you have incurred losses because she's not there?
The 'trial period' loophole was closed a while ago due to abuse by employers.
Sorry if I come across a bit sharp here but small business or large you should protect yourself by knowing the basics. Employees have exceptional rights nowadays.

 

[Annabel12]

As far as I'm concerned: she should have given you one weeks notice and you need to pay her all the hours she worked on her normal payday. If she was entitled any holiday you also need to pay that. Any deductions won't apply here, you normally do it when you take a temp to cover this person's absence. So in a nutshell you can't do anything about it really and you need to pay her on time, P45 can follow few days later.

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[Little Clarky]

Thanks for the replies. By saying trial period I don't mean I'm trying to get out of anything, I just meant she had not yet been given the contract that my other employees have. I'm just really mad as she has messed me around and I have bent over backwards to help and be nice to her. I even gave her some hours in advance as she said she needed it for Xmas so to get a text on Boxing Day about the following day made me fuming. Just feel like the law is always on the side of the employee. So as I understand she is entitled to her week in hand, but as she gave no notice I can hold that pay for the week she didn't work, and deduct any accrued holiday from the days she didn't work/give notice for. Also is notifying me by text acceptable. Can I ask for it in writing before I pay her.

 

[virtues2011]

Thanks for the replies. By saying trial period I don't mean I'm trying to get out of anything, I just meant she had not yet been given the contract that my other employees have. I'm just really mad as she has messed me around and I have bent over backwards to help and be nice to her. I even gave her some hours in advance as she said she needed it for Xmas so to get a text on Boxing Day about the following day made me fuming. Just feel like the law is always on the side of the employee. So as I understand she is entitled to her week in hand, but as she gave no notice I can hold that pay for the week she didn't work, and deduct any accrued holiday from the days she didn't work/give notice for. Also is notifying me by text acceptable. Can I ask for it in writing before I pay her.

The law is on the side of the employee. Everything relating to business should be in writing ...including a contract given on or before the first day of employment stating the probationary period. Nothing in business is personal so there should be no emotion towards this....be firm but fair, no need to bend over for anyone, you employ them not the other way around. Sorry for the bluntness....Missymuffin is correct.

 

[laurakate]

I've seen a number of people do a runner or go awol in this industry.

Going forward, if you have lots of appointments lined up you may be able to get someone from an agency in. It's costly so not ideal but it could ensure that the clients get their appointments honoured and that you make some profit overall. Or maybe put the word out on salon geek for someone even if that's on a short term/emergency/contract basis.

 

[MissyMuffin]

Yep, the law is usually on the side of the employee. Blame unscrupulous employers in the past for it. I've worked for some (in HR!).
The week in hand is a misnomer really.
You need to pay her for what she's worked but if you paid her some in advance you can deduct that.
So simply... Say your week ends Friday (today)
Her last day was Tuesday
Pay day is Friday
Pay her for Saturday, Monday, Tuesday less any advanced hours. But don't pay her accrued holiday pay as that's counted as being during her notice period.
Pay her next Friday
Then send p45.
If she asks for a reference you can say that she left giving no notice.
Hope that helps, that is my understanding of it.

 

[virtues2011]

Yep, the law is usually on the side of the employee. Blame unscrupulous employers in the past for it. I've worked for some (in HR!).
The week in hand is a misnomer really.
You need to pay her for what she's worked but if you paid her some in advance you can deduct that.
So simply... Say your week ends Friday (today)
Her last day was Tuesday
Pay day is Friday
Pay her for Saturday, Monday, Tuesday less any advanced hours. But don't pay her accrued holiday pay as that's counted as being during her notice period.
Pay her next Friday
Then send p45.
If she asks for a reference you can say that she left giving no notice.
Hope that helps, that is my understanding of it.

Missymuffin correct me here if you think I am wrong - but to give no reference to a new employer speaks volumes! I have never written a reference to an employee, only for an employer, although this isn't unheard of I'm sure.

 

[MissyMuffin]

Hi Virtues. regarding references I meant that if she asks you to give a future employer a reference, or if a future employer contacts you directly.
You can only be factual to avoid come-back but if it was me I'd include the fact that she left without notice if I got the chance
As an employer you can refuse to accept a 'to whom it may concern' type reference and probably should.
I have only worked in big companies so my advice may be a bit corporate 😊