Furlough under paid

Lexi-Lisa

Hi, my query is, back in May my husband emailed his employer to state his furlough pay was not paid correctly and that it seemed quite low, and could they recheck the calculations, his employers payroll said that it wasn’t and his pay was correct. Shocked by what this meant we struggled on until my husband was told he would possibly be staying on furlough until end of October. This was not good because pay was quite low, so an opportunity arose to give notice and he found other employment in August. 

Well, just recently he received a call from his old colleagues who have said my husband was correct and the pay was paid incorrectly and they have been reimbursed the amount owed. This was great news, so my husband contacted his previous employers payroll who has said he is not entitled due to having left the company.
This cannot be right surely, if my husband pointed this out in May and this is money he was owed like his colleagues, just because he no longer works for the company, this is money owed. Please can someone advise what he can do.

much appreciated 

Diamandis

You have 3 months from the date he should have been paid to make a claim through tribunal so it will be past this date now. You could however go down the small claims court route, the first step to this would be sending a letter before action and giving them 14 days to resolve it. If you Google "letter before action" you should find some templates. 

unholyangel

Assuming they paid him less than the 80%, you could also remind the employer that in order to qualify, they need to be paying at least 80% of the reference salary and if they didn't then they'll need to repay what they did claim for him. From what you've said, they could actually have to repay what they've claimed for everyone else too. 

Have a look in the original direction at paragraphs 7.1(b), 7.11 & 7.12.

prowla

unholyangel said:

Assuming they paid him less than the 80%, you could also remind the employer that in order to qualify, they need to be paying at least 80% of the reference salary and if they didn't then they'll need to repay what they did claim for him. From what you've said, they could actually have to repay what they've claimed for everyone else too. 

Have a look in the original direction at paragraphs 7.1(b), 7.11 & 7.12.

Yep - if they've not followed the rules then they could find themselves in a pickle.

Jeremy535897

prowla said:

unholyangel said:

Assuming they paid him less than the 80%, you could also remind the employer that in order to qualify, they need to be paying at least 80% of the reference salary and if they didn't then they'll need to repay what they did claim for him. From what you've said, they could actually have to repay what they've claimed for everyone else too. 

Have a look in the original direction at paragraphs 7.1(b), 7.11 & 7.12.

Yep - if they've not followed the rules then they could find themselves in a pickle.

Yes, although HMRC did allow some discretion where the calculation the employer used for reference salary was wrong, but "reasonable".

unholyangel

Jeremy535897 said:

prowla said:

unholyangel said:

Assuming they paid him less than the 80%, you could also remind the employer that in order to qualify, they need to be paying at least 80% of the reference salary and if they didn't then they'll need to repay what they did claim for him. From what you've said, they could actually have to repay what they've claimed for everyone else too. 

Have a look in the original direction at paragraphs 7.1(b), 7.11 & 7.12.

Yep - if they've not followed the rules then they could find themselves in a pickle.

Yes, although HMRC did allow some discretion where the calculation the employer used for reference salary was wrong, but "reasonable".

I know you yourself probably know this but others may not so....

HMRC said they wouldn't seek repayment where the only mistake was using the wrong basis for their calculation (fixed vs variable) and the employers approach had been reasonable. It wouldn't excuse any errors in the calculation itself.


I should have perhaps also mentioned that technically the employer making a further payment now wouldn't actually stop them from having to repay funds claimed under cjrs, since 7.12 only applies to payments made within 3 days of the directions being published iirc. 

Jeremy535897

unholyangel said:

Jeremy535897 said:

prowla said:

unholyangel said:

Assuming they paid him less than the 80%, you could also remind the employer that in order to qualify, they need to be paying at least 80% of the reference salary and if they didn't then they'll need to repay what they did claim for him. From what you've said, they could actually have to repay what they've claimed for everyone else too. 

Have a look in the original direction at paragraphs 7.1(b), 7.11 & 7.12.

Yep - if they've not followed the rules then they could find themselves in a pickle.

Yes, although HMRC did allow some discretion where the calculation the employer used for reference salary was wrong, but "reasonable".

I know you yourself probably know this but others may not so....

HMRC said they wouldn't seek repayment where the only mistake was using the wrong basis for their calculation (fixed vs variable) and the employers approach had been reasonable. It wouldn't excuse any errors in the calculation itself.


I should have perhaps also mentioned that technically the employer making a further payment now wouldn't actually stop them from having to repay funds claimed under cjrs, since 7.12 only applies to payments made within 3 days of the directions being published iirc. 

I agree. My recollection is that the original guidance was rather more vague as to what constituted "reasonable" (for example it might have addressed whether or not some complex commission arrangement should or should not be included in reference salary), but I lack the energy to find it! I don't recall it specifically saying "fixed or variable" originally, but I see it does now. 

Lexi-Lisa

Thank you, but I’m still confused as to what way is best

Jeremy535897

He should get in touch with his ex employer, ask why he hasn't been paid what he is due, refer them to the fact that they have to pay him under the law, and if he gets nowhere, say that he will take them to small claims court. Whether to take them to small claims court is not without risk.

Lexi-Lisa

Ok, thank you, he has spoken to colleagues if they received a letter explaining how they were underpaid, and they did, hopefully he will get a copy sent so he has something to go on. Could he ring HMRC and ask the question about being underpaid and owed money?

Jeremy535897

HMRC will refer him to ACAS, which is another option, but I doubt they can help.