Wage calculation under Furlough

JanP1967

I was placed on Furlough shortly after the lockdown. I receive an annual salary but I work in criminal defence and as such this entails out of hours work, for which I am paid overtime. Every month I have submitted overtime claims which have been paid. From reading MSE tips and newsletter as well as Government guidelines it was my understanding that where a job involves regular overtime I should be paid 80% of either the higher of the same last year or the average annual pay of the last year. My April wages have been calculated simply on 80% of my basic. My employers say they have calculated it correctly, despite me sending them the Government links and quoting MSE posts. Where or who can I contact to correct this? My employers will not change their mind - is this unlawful? 

Jeremy535897

I would have thought that your employer would have access to someone well versed in reading legislation. The guidance says:

"What to include when calculating wages

The amount you should use when calculating 80% of your employees’ wages is regular payments you are obliged to make, including:

• regular wages you pay to employees
• non-discretionary overtime
• non-discretionary fees
• non-discretionary commission payments
• piece rate payments

You cannot include the following when calculating wages:

• payments made at the discretion of the employer or a client - where the employer or client was under no contractual obligation to pay, including:
  • any tips, including those distributed through troncs
  • discretionary bonuses
  • discretionary commission payments
• non-cash payments
• non-monetary benefits like benefits in kind (such as a company car) and salary sacrifice schemes (including pension contributions) that reduce an employees’ taxable pay"

JanP1967

Thanks for your reply. I accept as my employers are a solicitors firm they would have someone with proper knowledge, but as is the case with employment tribunals one side argues with the other in the belief that they are both right. I am unsure what “non- discretionary overtime” means but it is within my contract of employment that I shall be expected to attend police stations out of hours for which I shall be remunerated. Does this not apply in the calculation?  

Jeremy535897

JanP1967 said:

Thanks for your reply. I accept as my employers are a solicitors firm they would have someone with proper knowledge, but as is the case with employment tribunals one side argues with the other in the belief that they are both right. I am unsure what “non- discretionary overtime” means but it is within my contract of employment that I shall be expected to attend police stations out of hours for which I shall be remunerated. Does this not apply in the calculation?  

I think it should. I think "discretionary overtime" is when people are paid a fixed salary for whatever hours they work, but say someone works all over Christmas on a special job, and the boss gives a discretionary payment of overtime out of gratitude.

JanP1967

Once again thanks for your thoughts and response. The only remaining issue I have is if there is any form of Ombudsman or body who I can approach to canvass this.  Thanks 

Jeremy535897

You could try talking to HMRC, or ACAS.