Employment Tribunal queries

bazster

My other half recently had a huge falling-out with her employer for whom she had worked for nine years, which resulted in her resigning in a major strop.

She asked me to look at the paperwork (her contract and pay slips, none of which she had ever bothered reading!) and it was immediately obvious to me that they've systematically underpaid her for the entire nine years. Basically the contract states that she was entitled to eight paid bank holidays p.a. in addition to her base holiday allowance, and where she was required to work on a Bank Holiday - which she has done many times - the holiday was payable on top of her pay for working the day. But looking through the payslips it appears she has never been paid for these eight days' holiday.

What's more, where she actually worked on Bank Holidays, then according to her contract she should've been paid at the Sunday rate (which is higher than the standard rate). She never has been, she has only ever been paid the standard rate for working on Bank Holidays.

She's asked them to look into all this, but they're taking their time so the question of an Employment Tribunal arises. The issues which spring to mind are (i) can she complain to an E.T. about underpayment going back nine years? And (ii) she doesn't have a record of what days and hours she has worked, so she doesn't know precisely how much the underpayment amounts to. Obviously (well hopefully!) the company has these records, but so far they have not been forthcoming with them.

Any employment experts here got any thoughts or suggestions?

Podge52

If you have the contract and evidence of the contract being breached then maybe the small claims court may be the way to go. Having said that I don't know how the court would deal with a breach of a contract that has already been terminated.

SeduLOUs

For a breach in contract/unlawful deduction of wages claim you only have 3 months from the date of the breach in which to bring a claim.

If you have multiple claims about the same issue, then you might be able to 'chain' the claims together as long as each breach is less than 3 months from the previous, and the most recent breach was less than 3 months ago.

I only know this from personal experience as we are currently trying to claim unpaid holidays around overtime going back two years by chaining them. We are hopeful that a letter before action will suffice though, as it costs about £400 just to start a claim in an employment tribunal.

Perhaps speak to ACAS for advice, but be aware that they often tell you what you want to hear. If we're talking about a large sum it might be worth spending half an hour discussing with a solicitor.

pmlindyloo

new legislation has been brought in about claiming back deductions from salary.

I am not an expert but it seems to suggest that any such claims are restricted to two years from July 2015.

Have a read of this:

http://www.cloisters.com/latest/the-deduction-from-wages-limitation-regulations-2014

I suggest that you get some advice from CAB (choose one with an employment specialist.)

Certainly you have made the right first moves in speaking to the employer and trying to get this sorted out. An ET should be the last resort and all other options should be explored first.

bazster

Thanks, I'm aware of the Small Claims route and, given the hurdles that I understand are now placed in the way of getting to an ET, it has certain attractions. I don;t see the contract termination being an issue, but what are issues are that (i) there's a time limit of 6 years on bringing small claims and (ii) she still doesn't know exactly what to claim. I suppose she could guess high and let them argue otherwise, which would force them to produce the details.

SeduLOUs

The limitations came about as a result of the new case law surrounding holidays based on regular overtime, and I'm not clear as to how it applies for other contractual underpayments.

It seems unlikely you'll be able to reclaim for 9 years, but you should be able to recoup something. Hopefully a valuable lesson learned for the other half about checking payslips!

Edit: If you're the one claiming, I'd suspect it would be for you to provide the details. The employer may very well dispute them with reasons, but you can't take someone to court on a 'guess'. If she sends a letter with a guessed figure, I imagine the response she will receive will be something along the lines of 'prove it'.

bazster

pmlindyloo wrote: »

new legislation has been brought in about claiming back deductions from salary.

I am not an expert but it seems to suggest that any such claims are restricted to two years from July 2015.

Have a read of this:

http://www.cloisters.com/latest/the-deduction-from-wages-limitation-regulations-2014

I suggest that you get some advice from CAB (choose one with an employment specialist.)

Certainly you have made the right first moves in speaking to the employer and trying to get this sorted out. An ET should be the last resort and all other options should be explored first.

Hmmm, thanks, seems to be a limitation applying only to ET's, not to breach of contract claims in the County Court.

SeduLOUs

I think the best option is to sit down with all of the payslips and get together as much information as you can to come up with a figure you can justify.

If there are missing payslips, then the employer may provide these, but don't count on it. There may be a route to get them all via a Subject Access Request, but the employer will have up to 40 days to respond which may not be helpful if there is a deadline clock ticking.

Once you come up with a figure you can justify, get a letter before action sent ASAP. Ideally you don't want to go to court at all if you can avoid it, and hopefully they will just pay up.

SeduLOUs

Additional thought: As a general rule, companies are only expected to keep payroll records for six years. If you simply stated that you weren't paid holidays for periods further back than that, then it would be unreasonable to expect them to demonstrate that they had. If you were going to try to go back further than this, then you would have to provide the documentation.

Furthermore, contractual payments are normally statute barred after 6 years (like unpaid credit card debts etc), so I highly doubt you'd have any option to go back beyond that even by staying out of the ET.

bazster

SeduLOUs wrote: »

It seems unlikely you'll be able to reclaim for 9 years, but you should be able to recoup something. Hopefully a valuable lesson learned for the other half about checking payslips!

If only!

SeduLOUs wrote: »

Edit: If you're the one claiming, I'd suspect it would be for you to provide the details. The employer may very well dispute them with reasons, but you can't take someone to court on a 'guess'. If she sends a letter with a guessed figure, I imagine the response she will receive will be something along the lines of 'prove it'.

Fair point, "guess" was the wrong word.

There is no issue with the holiday pay: 8 days p.a. is 8 days p.a. and she's never been paid any of it, so that's easy enough to work out.

The issues arise with the Sunday rate for Bank Holiday working. We know what days of the week she was contracted to work, and quite simply she has always worked Bank Holidays when they've fallen on one of her contracted days, unless the company was closed (Christmas Day and New Year's Day, they open as normal on all other Bank Holidays). So we can work this out too, except that she will not have worked if she was sick (almost never), or if we were actually on holiday. Difficult to work out from her payslips because she was always working extra hours here and there so we can't assume that the hours on any payslip were simply her basic contracted hours.

Those are the possible exceptions, of which she has no record but they obviously do. So we could come up with a near-accurate calculation, and if they wanted to quibble about a day here or there then fine.

sangie595

One further point. If they have underpaid her, then I guess she isn't the only person paid in this way. The employer could argue custom and practice and an implied contract - or even that the contract had been varied subsequently. If this applies to all their employees, then (a) it might be hard to argue against as contracts do change and there is no requirement to reissue the statement of terms, and (b) you would have to claim to a tribunal - the county court has no jurisdiction in matters of employment law and determining the terms of employment in the event of a dispute is the tribunals jurisdiction.