Can they do this?

Comms69

sooperb wrote: »

Yes Spadoosh I see what you’re saying. She had no contract when she started. The reason I’m asking is because they have sacked her too and she is taking them to the Employment tribunal too. She will have union representation, I was just wondering how much she would need to add to the case file, I didn’t want her to mention the working for nothing to cover money paid without her having done the work if it isn’t relevant.

She had no written contract - but a contract for work existed. The details are debateable obviously, as there isn't much proof. But if she did specific number of hours each week, that would help.


It sounds like she hasn't worked there for two years? If that's correct she may as well not bother with the tribunal.

steampowered

I would not worry about it until such time as the employer issues a formal 'letter before action' clearly stating their intention to bring court proceedings if the money is not paid and explaining the basis on which that money is said to be owed.

The burden of proof is on the employer to say why they think they are entitled to get money back.

Unless the employer can point her to a clear specific provision in a contract entitling them to payment, it doesn't sound like they would have much hope of claiming the money.

sooperb

Steam powered they aren’t asking her for the money, they told her she would have to work for what she’d already had and then she’d get paid again which is what happened so as far as they’re concerned she’s worked it off. She must have worked there at least two years as the union are going to pass it to their lawyer to look at.

Comms69

sooperb wrote: »

Steam powered they aren’t asking her for the money, they told her she would have to work for what she’d already had and then she’d get paid again which is what happened so as far as they’re concerned she’s worked it off. She must have worked there at least two years as the union are going to pass it to their lawyer to look at.

can you just ask her?

getmore4less

Comms69 wrote: »

She had no written contract - but a contract for work existed. The details are debateable obviously, as there isn't much proof. But if she did specific number of hours each week, that would help.

Where there are no written terms you can construct the contractual arrangement by what actually happens and intent.

One thing seems clear she worked and got paid.
Another is at some point the work changed and the pay changed.

It is likely that it will be possible to establish the relationship between the work and the pay.

The real issue now is it is the OP GD that needs to make any claim as they have already worked for free to cover the obligation the company was claiming.

As the union is involved best left to them.

Generally for those reading.

Establishing the contractual arrangement retrospectively has loads of issues, in the absence or formal arrangements through contract or particulars of employment it is a good idea to try to establish some framework, a series of Q&A emails is sufficient.

things like the relationship between the work and pay,

there are some guidelines on the NMW for this.
https://www.gov.uk/minimum-wage-different-types-work

Availability can often become an issues so a dialogue that establishes when you can take on work is useful as well as short term this should include things like not being available for things like holidays.

If the workload is variable discussion on priority, deadlines and overuns will be needed.

Plenty more but often the work/pay is the important one and comes up a lot in hospitality, retail, call centre, where there are often unpaid work periods like cashing up, setting up, clearing down etc. that should be paid time.

steampowered

sooperb wrote: »

Steam powered they aren’t asking her for the money, they told her she would have to work for what she’d already had and then she’d get paid again which is what happened so as far as they’re concerned she’s worked it off. She must have worked there at least two years as the union are going to pass it to their lawyer to look at.

Oh I see, thank you for clarifying.

It seems to me that this would be a deduction from her wages. The Employment Rights Act 1996 (https://www.legislation.gov.uk/ukpga/1996/18/section/13) provides that an employer is only permitted to make a deduction if authorised by statute, a term in the employment contract or an agreement in writing.

If the employer cannot point to a specific term in your daughter's employment contract or a specific written agreement, it will be unlawful for them to garnish her wages in this way.

The only way they might be able to justify it would be to point to the standard clause in employment contracts which says the employer can deduct any overpayments. But it is not clear to me that there has been an overpayment.

I suspect that this may also put the employer in breach of minimum wage legislation. The National Minimum Wage Act generally prohibits deductions taking an employee's pay below the national minimum wage, with certain exceptions (none of the exceptions would apply here).

If unlawful deductions are made this would entitle your daughter to issue a county court claim or an Employment Tribunal claim to recover the amounts owing.

If your daughter resigned in response to consistently not being paid she may be able to claim that she was 'constructively dismissed' to get compensation for unfair dismissal plus notice pay, but that is a more complicated legal argument to run.