Grievance re pay, they said too much time elapsed for claim!

cleomolly

Really stuck and don't know what to do for the best! hoping someone will come along with some advice, as only MSE's can

I've just been made redundant and made a grievance before I left the company regarding my pay (they have not been paying me for 7 hours worked each week for the past 2 years). I only noticed this when hearing about my redundancy and looking through all my paperwork, contracts ect. I first spoke to my manager who was unable to answer my query, so then wrote a letter at stage 2 of the grievance policy, it took them 5 weeks to respond to my letter, upon which they said they were unable to accept my claim as I had been working to those terms and conditions and this deemed as my appectance of them! I then wrote a letter in responce which they had 2 weeks later. I have now received a letter from them saying that too much time has ellapsed and they were not going to investigate further! Can they do this? surely not. My terms and conditions doesn't state any time scales on the policy, nor does the letter I received from them state any time scales in which I have to reply. It took me 2 weeks as I was gathering information and seeking advice as to where I stand. Surely when they took 5 weeks to get back to me after my first letter they can't expect me to reply within days!

I'm not sure what to do for the best, I don't want to jeopordise my referrence, nor do I want a long court case or battle with them, I just want what I'm entitled too. I'm thinking about the 'No win No fee' companies but am in need of some help.

Many thanks

dmg24

For what reason were you not paid for these hours, and how did you not realise this?

If the reason is, for instance, unpaid overtime, it could be argued that in doing this for so long without objection, this arrangement has been incorporated into your contract.

Googlewhacker

Their arguement is that because you did not raise a grievance regarding the differance in expected pay and contractual pay that your contract has changed by custom and practice and as long as it has not caused you to go under NMW then they will carry this arguement on.

HO87

Hi cleomolly. As others have already posted this could be argued to have become "custom and practice" but alot more information would have to be gleaned to make this certain. What were others paid? Were they suffering the same shortfall? I personally would not bother with NWNF merchants. They are interested in quick and easy "kills" and not anything which might become protracted or complicated and whilst it might appear "free" you could be required to sign up for an insurance policy to cover their costs.

Instead, I suggest that you contact ACAS (Advisory, Conciliation and Arbitration Service) on 08457 474747. Their advice is free, detailed and, in my experience, accurate and above all is available at the end of a telephone. You will not have to wait for an appointment as you would have to do were you to go the CAB.

Insofar as timings of grievance meetings/responses are concerned the only word used is "reasonable". Provided that there was no obvious reason (a works closure or the absence of a particular manager, for example) that covers the company's potential explanation for their taking 5 weeks to reply to your Stage 2 grievance then it is hardly equitable to declare your two weeks as "unreasonable".

Googlewhacker

Their arguement is that because you did not raise a grievance regarding the differance in expected pay and contractual pay that your contract has changed by custom and practice and as long as it has not caused you to go under NMW then they will carry this arguement on.

Googlewhacker

Grrrrrr this site is just doubling posts up!!!

SarEl

Googlewhacker wrote: »

Their arguement is that because you did not raise a grievance regarding the differance in expected pay and contractual pay that your contract has changed by custom and practice and as long as it has not caused you to go under NMW then they will carry this arguement on.

I am sorry but I agree. There was another similar type of post recently. To have not noticed that your were being paid the wrong amount for this length of time, in employment terms, is quite possibly a change of contract, and even if it isn't - tribunals can only accept a complaint within three months of the action complained of. Two years simply won't cut it. There may (depending on the contrctual terms) be a claim of debt here, but I am afraid that is a different branch of law and I couldn't be sure of the premise.

Googlewhacker

To clarify SarEL, i was of the understanding that whilst there is a 3 month less one day issue for most things that unlawful deductions did not have a time limit so could the OP try claiming under this (whether they are successful or not.....)

DVardysShadow

SarEl wrote: »

There may (depending on the contrctual terms) be a claim of debt here, but I am afraid that is a different branch of law and I couldn't be sure of the premise.

Yes, it seems that it could be taken to the small claims court. Plus I would suspect that 'custom and practice' would would not be such a strong argument there, in that it would be viewed from a contract perspective with a 6 year statutory limit on bringing a claim, rather than from an employment point of view.

A lot could depend on the available evidence. For the small claims court, I think that the employer would have to produce evidence that the contract had been changed in order to make the custom and practice argument stand - for example a notice to employees. Otherwise, I don't think that custom and practice is a particularly strong argument if this situation arises from an error. For example, if the employee has a payslip which clearly shows an annual salary or an hourly rate, it would be quite possible to show that the company has been paying for less than contracted hours. I don't think that an un-notified reduction in hours could count as custom and practice. I'm tempted to suggest that if there is evidence of the rate of pay, the employee should walk out an hour early one day, to collect a disciplinary as evidence that the hours have not changed. But I will stop short of that.

SarEl

Googlewhacker wrote: »

To clarify SarEL, i was of the understanding that whilst there is a 3 month less one day issue for most things that unlawful deductions did not have a time limit so could the OP try claiming under this (whether they are successful or not.....)

Happy to be disagreed with but I think I am with DVardysShadow on this one. I do not believe that there is a valid claim of unlawful deduction, and it is muddied anyway by the two years it has been going on, which the employer will then claim as custom and practice contractual change, which is out of time. I am not wholly convinced that they could not successfully argue such a defence in the small claims court either, but as I said - not my area of law, and I am only giving an opinion.

The time limit for tribunals is still three months for unlawful deductions. It does date from the "last incident of a series" - so from the last date a deduction was made. But as I said, I am not convinced an unlawful deduction argument can be made.

cleomolly

Thank you all for your kind replies.

Googlewhacker - I appologise for doubling up posts, thanks for replying though to state that!

It's a tough one to say I should have known they were shortfalling me, but I literally didn't notice this as my pay slip only states standard salary and no amount of hours next to it. plus we all accepted a 10% pay cut earlier in the year to try and save the company (which didn't happen) so pay has been a blue area for sometime.

I'm contracted to work 45 hours per week before any overtime is paid, we regulary worked 60+ hours and it turns out that I have only been getting basic salary for 38 hours then working 7 hours (up to the 45hours) for FREE! then getting paid overtime for any hours worked over 45.

My own silly fault for not noticing this but I still think they've been very sly about it all.

Thanks again for your help though, I'll give ACAS a call thnak you for their number HO87.

Again thank you