Should I take my pay dispute to Tribunal or County Court?

Casey1709

I am currently employed by an NHS Trust.

In September 2008 I changed careers and joined them to re-train in a specialist profession. The contract I signed said I would be paid 65% of the top spine point in pay band 5 in year 1, 70% in year 2 and 75 % in year 3. On qualification I would then be paid spine point 17 of pay band 5.

I qualified in May 2011 and was sent a letter saying they would employ me on spine point 16 of pay band 5. I declined thinking it was a clerical error but no it wasn't. Apparently the spine points were changed last year and 16 is now the lowest point in pay band 5. (Please note my contract explicitly says spine point 17, not the lowest spine point but in contrast the pay whilst training was specified as a % of the max spine point.) I declined and queried when my pay rises had been applied. I was threatened with contract termination in September and so raised an internal grievance.

In November I received the report which says I was paid 65% for 16 weeks too long, and 70% for 19 weeks too long. The report says the contract I signed could have been clearer but I have left it too long to raise. I personally think the contract is very clear. The grievance appears to have ground to a halt - I suspect they may be fillibustering so I want to move things along with a letter before action.

I have looked at the direct.gov website and it says ET claims should be made within 3 months but that county courts can hear breach of contracts.

Does anyone have any experience of bringing pay dispute claims outside of the 3 month ET guidence? would not getting the actual facts until Nov 2011 be an extenuating circumstance? Or, would I better to consider using small claims county court for a contract dispute? Has anyone used this route successfully?

Thanks in advance

pinkshoes

Were you over paid when training as thy stated?

How much difference in salary are we talking about here?

I'd think very carefully about taking this further, as it could screw up your future career. I'd only take it further if the pay difference is significant. Everywhere is making cuts at the moment!

Casey1709

Hi Pinkshoes,

I think I may not have been clear enough in my post. For the first year, they paid me 65% of the max spine point. My pay should have then gone up to 70%, but they kept paying me at 65% for another 16 weeks. The same with year 3, my pay should have gone up to 75% but they continued to pay me at 70% for another 19 weeks. Hence I was underpaid by about £600 in year 2, then £730 in year 3, and as of end Dec 2011 £660 this year. Next year I will be down £900 and £1200 the year after because of putting me on a lower spine point at qualification. Plus, all these feed into my pension calculations. Hence why I want to take it further.

Why should I be worried about my future career because of their mistake - isn't that what makes bad bosses worse, by not standing up for yourself?

Emmzi

Casey1709 wrote: »

Why should I be worried about my future career because of their mistake - isn't that what makes bad bosses worse, by not standing up for yourself?

Bit of a naive view. You will never know for sure why you get rubbish shifts, aren't successful at interview, but your past will follow you.

Most likely your grievance has ground to a halt due to festive staffing levels. Write chasing it up on the 3rd and if you are working to an ET deadline remind them what that deadline is.

SarEl

If I am reading this correctly then you have two complaints. The first is that you were underpaid during training by being retained on the percentage salary for too long at the lower rates. Such a claim is out of time for a tribunal - iy was your responsibility to check your salary payments at the time and raise any errors and it seems that the only way you have found out about them is because the employers report told you. That is not a reason for a tribunal to extend the time-limit. This would have to be a county court claim.

The second complaint is that you started on point 16 and not 17, because the scale had changed. I don't see you have a string argument here - although the contract may say point 17, if the intent of the contract was that you started on the lowest point of the scale, then things changed, a court can take this into account in ruling. But given that a grievance on this matter was ongoing you could bring this claim under either system.

However, I concur with pinkshoes - taking any form of court action against your employer needs to be carefully weighed in terms of what you might win against the possible longer term impacts on your future. The NHS is undergoing a lot of change and a lot of cuts, and this may not be the time to rock the boat. But that is your decision - you have your answers.

KiKi

Agree with SarEl, and would also like to compliment you on the use of 'filibustering' which, quite frankly, is a word that is underused these days.

KiKi

Casey1709

Emmzi wrote: »

Bit of a naive view. You will never know for sure why you get rubbish shifts, aren't successful at interview, but your past will follow you.

Most likely your grievance has ground to a halt due to festive staffing levels. Write chasing it up on the 3rd and if you are working to an ET deadline remind them what that deadline is.

As the grievance interview was in Oct with 3 days notice to me, the report written in Nov but not shared with me till I asked in Dec - how does the festive staffing affect that? I'll continue with my letter before action thank you.

Emmzi

Casey1709 wrote: »

As the grievance interview was in Oct with 3 days notice to me, the report written in Nov but not shared with me till I asked in Dec - how does the festive staffing affect that? I'll continue with my letter before action thank you.

Ok. I'm not going to tell you all the ways I have seen managers ensure the "difficult" member of staff is first on the redundancy list or gets managed out the door. You are clearly set on your course of action, so good luck with it.

Casey1709

SarEl wrote: »

If I am reading this correctly then you have two complaints. The first is that you were underpaid during training by being retained on the percentage salary for too long at the lower rates. Such a claim is out of time for a tribunal - iy was your responsibility to check your salary payments at the time and raise any errors and it seems that the only way you have found out about them is because the employers report told you. That is not a reason for a tribunal to extend the time-limit. This would have to be a county court claim.

The second complaint is that you started on point 16 and not 17, because the scale had changed. I don't see you have a string argument here - although the contract may say point 17, if the intent of the contract was that you started on the lowest point of the scale, then things changed, a court can take this into account in ruling. But given that a grievance on this matter was ongoing you could bring this claim under either system.

However, I concur with pinkshoes - taking any form of court action against your employer needs to be carefully weighed in terms of what you might win against the possible longer term impacts on your future. The NHS is undergoing a lot of change and a lot of cuts, and this may not be the time to rock the boat. But that is your decision - you have your answers.

Hi SarEl,

Thanks for your helpful reply. Can I just understand why you think the intent of the contract is more important than the wording of the contract. 17 cannot mean 16, at the grievance interview, the investigation officer shared an email from deputy director of HR which repeated the spine point 17 quote. It is only after qualification that they sent me the sign spine point 16 letter - doesn't this show they want to vary my T&Cs?

Thanks in advance

SarEl

Casey1709 wrote: »

Hi SarEl,

Thanks for your helpful reply. Can I just understand why you think the intent of the contract is more important than the wording of the contract. 17 cannot mean 16, at the grievance interview, the investigation officer shared an email from deputy director of HR which repeated the spine point 17 quote. It is only after qualification that they sent me the sign spine point 16 letter - doesn't this show they want to vary my T&Cs?

Thanks in advance

Assuming from what you said previously that point 17 was previously the lowest point on the scale, the argument would be that this was the intent - to pay the then lowest point; and that they could not have foreseen a restructuring of the grades at the point of entering into the contract, and therefore cannot be expected to honour a contractual condition that, whilst made in good faith at the time, is no longer binding because conditions of service have changed. I could walk that argument through court and be almost certain of winning - I bet the NHS lawyers could too.

Just to be clear - I may have answered your question but I think you are being blinkered in your approach and may well live to regret it. There are times to stand up for your "rights" - and there is a distinct lack of clarity about what exactly those may be here - and there is a time to stick your head down under the parapet. Public sector cuts, NHS reorganisation - unless the benefit of your "rights" is great, I would not view this as a time to go gallivanting along the parapets.

There is a great deal to be said for compromise - and a tribunal would tell you, even if a civil court doesn't, a lot to be said for exhausting internal procedures before going to court (you have submitted a grievance - you haven't appealed the outcome). Why not try to settle for repayment of the training underpayment as a lump sum and tax free as a settlement of the dispute and let the grade point go? You have a better argument there and if the employer takes advise they will probably discover that it would be a cheaper option for them than arguing in a civil court, since a debt in civil law remains for 6 years. That way you could both get part of what you want, but still save face.

BitterAndTwisted

OP: in the current economic climate I think you'd be reckless in the extreme to consider either an ET or CC. If you were actually underpaid by really substantial amounts per annum I might have more sympathy but you haven't. The amounts you have quoted are less than a tenner a week after tax. That's REALLY not worth risking being shown the door or damaging in the long-term that new career you've retrained for. I admit what you've experienced is irksome but absolutely not worth being foolhardy about, unless you have suicidal tendencies..