Working but not paid - earnings

Hi

Clt’s employer hits the rocks financially end 2010 and cannot afford to pay clt in full. He continues to work full-time but pay comes in dribs and drabs.

He gets the last of his Dec 10 pay in May 11 and at that point decides to stop working for them. He hasn’t resigned and is taking advice re his employment rights.

He is owed about £6K for unpaid wages from Jan to Apr 11 which his employer says he may or may not get.

He is getting HB now based on his wife’s income etc but claim has been refused for Jan - Apr period on basis that he had earnings albeit not yet paid.

I struggled to find any case law on how unpaid wages are treated - any ideas or pointers gratefully received.

There quite a few decisions quoted, in the link below, that should be useful.

Secretary of State for Work and Pensions v JP [2010] UKUT 90 (AAC)

http://www.judgmental.org.uk/judgments/UKUT-AAC/2010/[2010] UKUT 90 (AAC).html

Sorry bit of a read.

My approach would be to appeal, arguing that it is simply a FACT that there have been no earnings for the period in question AND, in the absence of deeming provisions to the contrary, there is no legal basis on which to take income into account that hasn’t actually been received.

In anticipation of the LA arguing “notional earnings”, I would respond by arguing the evidence shows the employer simply CANNOT pay and this negates the “notional earnings” provision.

The only other thing I would do is acknowledge that should any payment subsequently be made that constitutes earnings (or even unearned income), it will be disclosed.

Obviously, an resultant HB/CTB overpayment(s) would almost certainly be recoverable so any backpay would be severely dented. 

Barring anyone identifying case law to the contrary, my initial inclination would be that a Tribunal would find for your client.

NB:  The case cited by chacha is based on a completely different situation to the circumstances set out in this thread.  In my view, CJSA/0475/2009 is irrelevant here (assuming there is not more to this than meets the eye).

Thanks guys.

You’ve steered me back to the definition of earnings at HBR 35(1) - ‘....any remuneration or profit derived from that employment….’

From January he was deriving nowt…..and if that changes he is obliged to report that fact and probably face an OP.