Not being paid! and having to owe 110 hours back unpaid in the space of 4 weeks

dutbuster

Job Description

Assistant Golf Professional:

your main objective is to ensure and assist in the smooth running of the pro shop at all times

with this comes a big responsibility to the role and your own personal future as a PGA Professional

Whilst in my employment your goal should be trying to obtain a handicap of 4 or lower, you will then have the opportunity to apply to the PGA for a place on the training course which will eventually lead you to becoming a fully qualified PGA Professional

Practice and playing time is vital for the development of your young career as well as mixing with the membership, this will help your ongoing life skills to be improved

an average working week will consist of around 30 hours shop work,(some weeks more, some weeks less)

working extra hours of shorther hours will be banked for future use when required

Wages will be paid on a four weekly basis

Four weeks holiday(per annum worked)

(booked at my discretion)

Day to day duties include the job check list to be carried out each and every day.


This was all i was given or agreed to upon my start at the job and anything that resembles Ts and Cs

dutbuster

Also having spoke to ACAS this is what they had to say!
"It is a fact that the employer has no legal right to do this if he/she was to insist you work these extra hours without pay, it is unlwaful and the employer could be sued or held to a tribunal for unlawful deduction of wages"

zzzLazyDaisy

dutbuster wrote: »

Four weeks holiday(per annum worked)

Okay, to start with, this is unlawful.

Assuming your 30 hours are spread over 5 days a week, then you are entitled to a statutory minimum of 28 days holiday, which includes bank holidays.

So if you don't work a bank holiday, that comes off your holiday entitlement, if you do work, then regardless of whether you are paid your normal rate, time and a half or whatever, it does not affect your holiday entitlement.

Going back to your current problem re wages:

My analysis of the situation is this - firstly this is not a zero hours contract (this is where the employer is not obliged to offer you any work at all, and if they do offer you work you are paid on an hourly basis for the hours worked).

What you have is a 30 hour a week contract with the proviso that if you work less than that in the quieter months, you'll be expected to make it up in the busier months. There is nothing in the document that you have posted which allows the employer to deduct money from your wages if you don't work the full 30 hours. In other words, if you have 'hours in the bank' that you owe him as a result of working a bit less some weeks, then it is those extra hours that are in the bank that he is entitled to require you to use up and work extra over and above your contracted 30 hours a week. There is nothing to say he can with-hold your normal pay for your normal 30 hr week. So he cannot point to this clause, to justify stopping your wages.

So the question is, what about the fact that you were paid for two weeks during the snow, when you did not actually work? If you were willing and able to come to work, despite the snow, but unable to actually attend work because he closed the shop, then I would argue that you were entitled to receive your wages because it was your employer who prevented you from working, by telling you not to come to work. You are a salaried employee, not an hourly paid employee, so it would be normal for you to be paid in those circumstances.

If in fact the employer has over-paid you by mistake then the employer is entitled to recover the money. But as I say, in my view, from what you say, that is not the case here.

You can find a useful summary about the law relating to deductions from wages here http://www.hodgehalsall.co.uk/node/66 (note I have no connection with this firm)

It might be that a way forward might be for you to offer to take some of the days off as holidays (I am not saying this is necessarily right, but if you are looking for a way to compromise without taking legal action, this might be a way forward). However, that does pre-suppose that your employer is willing to accept that you are in fact entitled to more holidays than the 20 days referred to in your job description.

I suggest that you speak to ACAS 08457 47 47 47. They give free impartial advice on employment related issues. Don't just speak to the call centre person who answers the phone, ask for a call back by an ACAS Concilliation Officer. They will sometimes agree to speak to the employer on your behalf, and I would hope that, given the fact that your employer really doesn't seem to understand his legal obligations, the CO might agree to do this.

Daisy

Savvy_Sue

dutbuster wrote: »

so i have mentioned this to him and he says it is unacceptable of me to do this and my two options are to work the outstanding hours and be done with it or hand in my keys he will invoice me the hours outstanding and be expected to pay those hours back in cash, i have told him i have spoken to acas and they have informed me that he is doing this unlawful and could be held at a tribunal to his amusment he laughed it off and said that wont happen!

One thing he most definitely CAN'T do is deduct anything from your regular wages to make up for those hours, because to do that legally he would have had to have put that in your terms and conditions, in writing, and had you agree to it.

I'd adopt a two pronged approach here: first with your employer, to ensure that you are not badly treated. second with the club itself: can you find out what their plans are? if they are replacing your employer with someone else, is it likely there will still be a position for an 'assistant / junior' as you seem to be? Or, if they are going for a different model, would they be willing to employ you directly?

zzzLazyDaisy

Savvy_Sue wrote: »

One thing he most definitely CAN'T do is deduct anything from your regular wages to make up for those hours, because to do that legally he would have had to have put that in your terms and conditions, in writing, and had you agree to it.

Hi Sue

Just in case people are reading who don't understand the distinction - the exception to the rule is where there is a genuine overpayment of wages. In that case the employer is entitled to recover the overpaid money even if there is no deductions clause in the contract.

Savvy_Sue

zzzLazyDaisy wrote: »

Hi Sue

Just in case people are reading who don't understand the distinction - the exception to the rule is where there is a genuine overpayment of wages. In that case the employer is entitled to recover the overpaid money even if there is no deductions clause in the contract.

Is that so? When we wanted to deduct something from someone's final salary because they'd take more leave than they were entitled to, our payroll lady checked that we had such a clause before she would do the sums ...

zzzLazyDaisy

Savvy_Sue wrote: »

Is that so? When we wanted to deduct something from someone's final salary because they'd take more leave than they were entitled to, our payroll lady checked that we had such a clause before she would do the sums ...

Ah, that's because that isn't a genuine overpayment of wages, it's a debt.

A genuine overpayment of wages is where someone has received money in their wages that they were not entitled to. Usually it is a payroll error, so say someone is accidentally paid twice in the same month, or an hourly paid employee is paid for 30 hours one week by mistake when they only worked 20 hrs.

It can also happen when someone has time off work for which they are not entitled to be paid, but this occurs after payroll has been actioned, so they get a full month's pay, but (say) the last week shouldn't have been paid but it was too late to stop the payment. Eg, if an employee went off sick and should only have got SSP, but the full month's money was paid into the bank.

Or if someone takes unpaid leave but payroll isn't notified and so they get paid by mistake.

OR if there is two week's snow and the employee is snowed in and unable to get to work, even though the place of work is still open and requires his attendance. In that case the employer may be justified in not paying the employee, but if the wages went through in error, or it was too late to stop payroll, then the employer would be justified in deducting the money, because it shouldn't have been paid in the first place. That is why I asked questions about this - but since it was not the snow that prevented OP from going to work, but the Employer refusing to allow him to work, then he is still entitled to be paid.

I realise it is a fine distinction, but there is a difference.

Savvy_Sue

zzzLazyDaisy wrote: »

Ah, that's because that isn't a genuine overpayment of wages, it's a debt.

zzzLazyDaisy wrote: »

I realise it is a fine distinction, but there is a difference.

I will try to get my head round the distinction in the morning! :rotfl:

mynameisclare

zzzLazyDaisy wrote: »

Okay, to start with, this is unlawful.

Assuming your 30 hours are spread over 5 days a week, then you are entitled to a statutory minimum of 28 days holiday, which includes bank holidays.

Presumably the "20 days holiday" doesn't include the Bank Holidays? That would bring the total to 28.

zzzLazyDaisy

OP hasn't said whether he is required to work bank holidays or not.

But yes, if the holiday entitlement is 20 days plus bank holidays, then the Written Particulars of Employment must state that.

The point is that this employer clearly does not understand his legal obligations. If he had complied with his obligation to provide a formal written statement of employment particulars OP would not be left to guess what his rights are.