Boss's 'discretion' not to pay me..but pays others!

bob_dob

Hello,
My friend has been working for his employer for over 9 months without having signed a contract and has never been given a work handbook! Recently my friend was off work for 2 days and when he came back to work he gave his boss a doctor's note to verify that he had damaged ligaments in his shoulder. Later on during the month he discovered that his boss hadn't paid him for the time off even though other workers have been paid under very similar circumstances.

The message from my friend goes like this:
'I asked my boss for a reason why i wasn't paid for the 2 sick days and he said 'why should you be?' To which i replied 'Other people get paid when they have sick days and mine was a genuine injury' and he agrees it was a genuine injury but it was his discretion and that because it was an injury as a result of what i chose to do in my spare time he's not paying me. So i said 'Id like you to justify taking that amount from me as im paid a salary therefor i dont know how much per hour and id like that in writing, which he really doesn't want to do as he doesn't want us to have a breakdown of our wages as it's not been done in 10 years.'

'When i asked my boss for a breakdown of how they took the amount they did off me he showed me my weekly wage divided by 5 then times by five to get the figure

My friend says he is on a temporary verbal contract (I didn't know there was such a thing?)

Today i received this message from my friend:
'My boss gave me a contract of temporary employment today so i must look through it properly. There are a few things on there which im unsure about, namely 'You may be required to work further hours without additional renumeration.'

Does this sound slightly unfair and am i correct in thinking that my friend should legally be entitled to pay for his days off if others have received t
pay under near identical circumstances?

anamenottaken

It is legal to include a term about being required to work additional unpaid hours - as long as if that requirement is implemented the hourly rate of pay for all hours combined does not fall below NMW.

If managerial discretion is allowed then that is what it is.

Uncertain

bob_dob wrote: »

Hello,
My friend has been working for his employer for over 9 months without having signed a contract and has never been given a work handbook! Recently my friend was off work for 2 days and when he came back to work he gave his boss a doctor's note to verify that he had damaged ligaments in his shoulder. Later on during the month he discovered that his boss hadn't paid him for the time off even though other workers have been paid under very similar circumstances.

The message from my friend goes like this:
'I asked my boss for a reason why i wasn't paid for the 2 sick days and he said 'why should you be?' To which i replied 'Other people get paid when they have sick days and mine was a genuine injury' and he agrees it was a genuine injury but it was his discretion and that because it was an injury as a result of what i chose to do in my spare time he's not paying me. So i said 'Id like you to justify taking that amount from me as im paid a salary therefor i dont know how much per hour and id like that in writing, which he really doesn't want to do as he doesn't want us to have a breakdown of our wages as it's not been done in 10 years.'

'When i asked my boss for a breakdown of how they took the amount they did off me he showed me my weekly wage divided by 5 then times by five to get the figure

My friend says he is on a temporary verbal contract (I didn't know there was such a thing?)

Today i received this message from my friend:
'My boss gave me a contract of temporary employment today so i must look through it properly. There are a few things on there which im unsure about, namely 'You may be required to work further hours without additional renumeration.'

Does this sound slightly unfair and am i correct in thinking that my friend should legally be entitled to pay for his days off if others have received t
pay under near identical circumstances?

This would be better in the employment forum......

However.....

The "boss" is legally required to give you a written statement of the main terms of your employment within two months of you starting. Sadly, on its own there is little you can do about this failing. If you had grounds to take him to an employment tribunal this could be added to you claim and MAY lead to an extra award. However you can no longer make this claim on its own.

A firm is not obliged to offer sick pay (apart from SSP). If they do they can contractually make this discretionary which means that you have no guarantee of being paid. There is some requirement on them to act fairly and equitably in making exercising this discretion.

As you have not been given written terms you MAY be able to argue that your terms are the same as the others and therefore you are not being treated fairly.

However, take great care. With less than a year's service you have very little employment protection.

McKneff

the first 3 days of SSP is not payable anyway, if he pays others then its at his discretion.

bob_dob

Hi and thank you for some great answers!!
I must say that i have had a similar problem with my employer (i have been there for over 2 years though) and my union explained it as if the boss has used his 'discretion' then that is actually discrimination. I sent a grievance letter and subsequently got paid the moneys i was owed....however it does seem that my friend has less rights than me?

Googlewhacker

bob_dob wrote: »

Hi and thank you for some great answers!!
I must say that i have had a similar problem with my employer (i have been there for over 2 years though) and my union explained it as if the boss has used his 'discretion' then that is actually discrimination. I sent a grievance letter and subsequently got paid the moneys i was owed....however it does seem that my friend has less rights than me?

Its not discrimination if he uses the same rule for the discretion throughout.

So if he says that everyone that injured themselves in their own time doing a hobby such as mountain climbing didn't get paid but people who injured themselves walking down a road did then this would be a fair discretionary decision.

The boss would not be allowed to choose not to pay you for injuring yourself if you did it walking down a road and so did someone that did get paid.

Hope that makes sense.

As your friend has not worked one year he needs to be careful about kicking a fuss up because he could be dismissed within a year without any comeback unless it was discriminatory in the eyes of the law.

Uncertain

Googlewhacker wrote: »

Its not discrimination if he uses the same rule for the discretion throughout.

So if he says that everyone that injured themselves in their own time doing a hobby such as mountain climbing didn't get paid but people who injured themselves walking down a road did then this would be a fair discretionary decision.

Debatable!

Both are leisure activities. OK, one is higher risk than the other (although on some roads even that is debatable)!

Where do you draw the line? Football OK but Rugby is not????

Googlewhacker

Uncertain wrote: »

Debatable!

Both are leisure activities. OK, one is higher risk than the other (although on some roads even that is debatable)!

Where do you draw the line? Football OK but Rugby is not????

Yeah I take your point but I would also expect if it went to tribunal that as long as there had been consistancy with the view of the employer regarding this point that they would be ok

Gordon_Hose

My girlfriend works for a company where her and another girl don't get sick pay. But the rest of the employees do. It's only a small company, less than 20 employees.

When she started there 3 years ago, she got sick pay, then they removed it a year or so ago.

It's discretionary.

bob_dob

My union rep says that in those circumstances 'discretionary' is 'discrimination'!

Googlewhacker

Gordon_Hose wrote: »

My girlfriend works for a company where her and another girl don't get sick pay. But the rest of the employees do. It's only a small company, less than 20 employees.

When she started there 3 years ago, she got sick pay, then they removed it a year or so ago.

It's discretionary.

I think your girlfriend wants to check that situation out as it sounds rather dodgy