Query around furlough agreement

Jonesy1977

To be fair (I don't wish to sound harsh here) , it doesn't matter if it is reasonable (I personally feel it is reasonable) what matters is whether it is a requirement (it isn't) and whether you knowing how calcs are made would have impacted your willingness to be furloughed (it woudnt) therefore the only material issue is whether you have been paid for 8 hours less than you are due and as @Jeremy535897 points out, you must be paid for the hours you worked (assuming there is not dispute on the number in and of itself).  I would be focussed entirely on the issue of the 8 hours (bank holiday) and forget about everything else.  "Could you confirm that I have I been paid for the Jan bank holiday, if yes then can you explain the shortfall in pay, if no then may I please be paid" - I would also wait until you have had the Feb. payslip first to ensure i has not already been paid, it really does look like the bank holiday may have been claimed as CJRS from what you have said.
Good luck - hope you get the pay sorted!

FuzzyDuck1

Jonesy1977 said:

To be fair (I don't wish to sound harsh here) , it doesn't matter if it is reasonable (I personally feel it is reasonable) what matters is whether it is a requirement (it isn't) and whether you knowing how calcs are made would have impacted your willingness to be furloughed (it woudnt) therefore the only material issue is whether you have been paid for 8 hours less than you are due and as @Jeremy535897 points out, you must be paid for the hours you worked (assuming there is not dispute on the number in and of itself).  I would be focussed entirely on the issue of the 8 hours (bank holiday) and forget about everything else.  "Could you confirm that I have I been paid for the Jan bank holiday, if yes then can you explain the shortfall in pay, if no then may I please be paid" - I would also wait until you have had the Feb. payslip first to ensure i has not already been paid, it really does look like the bank holiday may have been claimed as CJRS from what you have said.
Good luck - hope you get the pay sorted!

Thank you. I have emailed them asking specifically about the bank holiday in the way that you had suggested and they came back with “your pay is correct”. My three immediate line managers above me have tried to help get this sorted as they can see my payslip is incorrect for January but HR are being awkward with them too. The most senior manager called me earlier this week and said to put in a formal grievance as something isn’t right here and we’re all being shut down by the HR manager. I’m definitely not the only one that can see an error in the calculations. Feb pay slip received today and the difference isn’t included. 

FuzzyDuck1

Hi, little update and urgently requiring further help please from any employment law solicitors or relevant expertise in this field. As there was no reimbursement of my missing wages and one of the HR managers insisted that my pay was correct and wouldn’t enter any further discussion I put in a formal grievance upon advice from my manager as he’d tried to help rectify the problem to no avail. The grievance meeting was held 8 days later. My grievance was very detailed and included my wage slips, emails between HR, payroll and I and attached a copy of the Treasury Direction and ACAS rules on furlough. Please let me reiterate at this point that I am not adverse to furlough and have several times stated this to my employer. However, (I know this is complex so please bare with me), my employer decided to introduce an “End of month supplement” from the day after the payroll run which they do on the 20th of the month. Meaning that anyone that has had any flexi furlough (even 1 hour in the month) will only get paid 80% of their wage from 21st to the end of that month. In this case 31st January. They then wish to pay back the 20% in the following months payroll run once they know exactly what hours you have worked. I’ve read up on this and believe that they can’t deduct that 20% without the employees permission in writing which they’ve never sought or received. They had previously deducted this 20% end of month supplement in a couple of months pay where I had taken statutory holiday. (As they’d claimed furlough for those days that I know is not allowed within the TD surrounding CJRS). I complained at the time to my employer and they did pay the 20% end of month supplement back to me on those occasions within a couple of days of my complaint as I’d actually worked the entire month other than taking statutory holiday but they knew I didn’t agree to such deductions in relation to the end of month supplement.

I initially thought (due to an email from payroll trying to explain my pay) that they had failed to pay me for bank holiday. However, it’s now clear that they only calculated 10 days pay end of month supplement instead of 11 days which are 21st to 31st January inclusive. Easy mistake to make when looking at 21-31 thinking it’s 10 days but it’s 11. That is where the short fall is. I’m not even sure they are legally allowed to do this end of month supplement?

Anyway, I had my grievance meeting with HR (not the HR manager that my complaint was regarding), the investigating manager and was accompanied by my work colleague. It focused around my pay and the way HR manager had conducted herself whilst in the informal complaint stage who had said “by signing the furlough agreement in March I agreed to a salary sacrifice” etc. Highlighted the fact that there was no valid furlough agreement in place from 1st June onwards and explained I’d like a flexi furlough agreement going forward to explain how it will effect my wages so that I can budget for my family if there should be times of flexi furlough and asked for proper processes to be followed (as explained clearly in the treasury direction and ACAS) which is for my manager to speak to me regarding how the flexi furlough will affect me (how many hours per week or month) which could include a caveat that this could be changed surrounding the hours required by the company by further discussion and agreement between me and my line manager. 

The grievance meeting was concluded and was told I’d have a decision within the following week (7 days). 3 days after my grievance meeting (not sure if this is just coincidental) I received a letter that was devised by the HR manager in which I’d made a complaint explaining that the company were going to deduct £185 per month for 3 months to recoup some private car parking tickets that the lease hire company had passed onto them. Ive looked into this and my employer isn’t contractually allowed to deduct these as my contract doesn’t include these types of tickets. As soon as I was aware of them (I realised they had been a mistake as my wife who was driving the car had a work permit that gave her permission to park there ) I was able to get my wife’s employer to liaise with the private parking operator and the tickets were cancelled. My employer insisted until the refunds are received by their lease hire company the amounts will be deducted from my salary and in any event will still be liable for the admin fees. I’ve looked into this on the relevant forum asking advice and they definitely can’t charge me for these. I am now having to deal with this issue in another complaint but do have all the legal information required and have also sought ways in helping the company to not be liable for the admin charges too which I will be discussing when I am back to work and feeling stronger in myself to deal with this. However, feeling like I was being punished for raising a grievance and panicking that my wages would be significantly reduced putting me and my young family into financial hardship I had a little mental breakdown and am currently off work with stress. 

Anyway, I was expecting the result from my grievance to be given last Tuesday as agreed. I heard nothing by Wednesday afternoon and so contacted the investigating manager to ask when I’d hear about the outcome of the grievance. He replied to my email to say that he needed more time as he was waiting to hear back from HMRC in relation to the furlough agreements to get confirmation that they are doing things correctly. Although at the time I didn’t think it was massively important to my grievance for them to have that confirmation to enable them to pay me the missing wages I left it with him. He then confirmed I would hear result Tuesday of this week (yesterday). Again didn’t hear anything and I chased him this morning by email to ask why there has been a delay and would like to know if he was any closer to concluding. Heard nothing by lunch time so called him. He said he will be calling at 5pm this evening. He called me at 3pm to tell me that they were going to reimburse me £81 that they had short paid me. (It’s £166 that I have been short paid and proved in my grievance) and that he’d checked with HR Manager (the person I’d put in my complaint about) and she’d confirmed to him that they were doing everything procedurally correct! I asked for his letter of outcome to the grievance and he said he hadn’t written one up! Not only that, I’d never received any minutes from HR from the grievance meeting to be able to check he’d understood the grievance (but there was everything he needed in my grievance letter and had said that it was very comprehensive and I had given him all that he will need to investigate thoroughly) and when talking it through he hadn’t investigated anything without the HR manager whom I’d complained about (There are several HR managers employed) and had no proof of his investigations that he could give to me.  

I have called ACAS to instigate early conciliation and I am preparing my appeal for when the letter of outcome from the meeting is received. Investigating manager said he will send it some time tomorrow. (Once he’s written it up now that I’ve requested it).

I’m now feeling incredibly let down by the whole procedure or lack of it and extremely stressed that this isn’t going to have a happy outcome. 

I guess I’m looking for advice on what to include in my appeal to my employer and to further understand my rights in this situation. I’ve never been in this position before and never have been an “awkward” employee and have 5* personal development review for the work I do for my employer and my line manager has been a great support over the past few weeks and really wants me back to work ASAP. Obviously during these current times, I want to try to hold onto my job (even though at the moment feel I’ve lost trust) and desperately want to sort this without tribunal etc. 

Have I done anything wrong?
Have my employer done anything wrong?

thank you. Your help will be very gratefully received. Please ask any questions you need to help give me some advice etc 

MattMattMattUK

FuzzyDuck1 said:

Have I done anything wrong?

Have my employer done anything wrong?

Technically and legally you have done nothing wrong, you appear entirely correct in your premise based around furlough and what you should and have been paid. You have, unfortunately though, made yourself a "difficult employee" in the eyes of HR, who almost always have disproportionate levels of power and are renowned for being the most stubborn and least likely department in a company to admit they have made a mistake. 

It looks like they may well be in for whack from HMRC if they are withholding wages claimed from CJRS. They are in breach of employment law for making unlawful deductions from wages if there is no contractual basis for the parking tickets. They are in breach of their own grievance procedures in relation to how they have handled this and that would almost by default mean that they would loose an employment tribunal. However HR being what they usually are they will not take kindly to it being pointed out that they are in error and will like it even less now that they have been proven to be in error.

If I were you I would be having a serious off the record chat with your line manager, keeping an eye on potential alternative employment, making sure you keep a precise record of everything in case it comes to an employment tribunal.

FuzzyDuck1 said:

I realised they had been a mistake as my wife who was driving the car had a work permit that gave her permission to park there 

The part I would be making sure of from your side ASAP is was your wife authorised to use your works car for her commuting.

FuzzyDuck1

MattMattMattUK said:

FuzzyDuck1 said:

Have I done anything wrong?

Have my employer done anything wrong?

Technically and legally you have done nothing wrong, you appear entirely correct in your premise based around furlough and what you should and have been paid. You have, unfortunately though, made yourself a "difficult employee" in the eyes of HR, who almost always have disproportionate levels of power and are renowned for being the most stubborn and least likely department in a company to admit they have made a mistake. 

It looks like they may well be in for whack from HMRC if they are withholding wages claimed from CJRS. They are in breach of employment law for making unlawful deductions from wages if there is no contractual basis for the parking tickets. They are in breach of their own grievance procedures in relation to how they have handled this and that would almost by default mean that they would loose an employment tribunal. However HR being what they usually are they will not take kindly to it being pointed out that they are in error and will like it even less now that they have been proven to be in error.

If I were you I would be having a serious off the record chat with your line manager, keeping an eye on potential alternative employment, making sure you keep a precise record of everything in case it comes to an employment tribunal.

FuzzyDuck1 said:

I realised they had been a mistake as my wife who was driving the car had a work permit that gave her permission to park there 

The part I would be making sure of from your side ASAP is was your wife authorised to use your works car for her commuting.

Thank you. Yes I checked with the fleet manager and my wife is covered to use the car to commute to work of the weekends. The only thing we can’t use it for is business use as in if we had our own business wanting to use the car as part of that. Thanks. 

I’m at a loss as to what to do... I will be actively seeking alternative work although I’m gutted as I absolutely love my job and have no issues with my direct line managers and always have a good relationship with them. They are furious about the whole situation (not with me). 

Do you know if they are legally allowed to do this “end of month supplement” as from what I’ve read and understand from the Employment Act and Wages Act, it’s not unless they had my express permission in writing. That’s the one part of this whole scenario other than them not working out my pay correctly that I’m most annoyed about as it is due to this “supplement “ that my wages were so down in the first place as wasn’t calculated correctly. I don’t think they understand that this pandemic hasn’t just affected the company, it’s affecting its employees too and by withholding 20% of 11 days pay when those days have been worked isn’t acceptable. Plus they get the CJRS claim money back within 7 days of putting in the claim. Almost like they are using their employees as a cash flow solution. I was almost £500 down on my usual take home pay due to this. They’ve rectified some of it but I’m still without a considerable amount of money owing to me. 

Also... there is more than one HR manager that the investigator could have gone to in order to seek clarification but if I’m honest I would have expected them to ask the companies solicitors considering the serious implications this could have. I’ve never wanted to cause an issue for my employer. However I expect processes to be followed correctly and for things to be done properly going forward as that’s what they expect from me in my job. Not looking for anything like compensation, only my missing money and for process to be followed going forward. Thanks 

FuzzyDuck1

I understand what you say about HR thinking i am an now an “awkward “ employee”... however, as the investigating manager (he works directly under the director) I would have thought he’d have been more concerned with having a HR manager spouting out untruths around the law to me and stating in writing that she thinks I should go to a solicitor to get my facts straight and to include all the documents that she bases her theory on. And then me proving her wrong .... she’s employed to know the law surrounding employment laws and has worked against the company in goading an employee to seek legal advice! Surely that’s gross misconduct on her part for putting the company in harms way in the first instance? I have it confirmed in writing that SHE implemented the “end of month supplement” which I don’t think is legal anyway. Although I’d not take any pleasure what so ever for her to lose her job over this, I don’t see why I should lose mine. 

MattMattMattUK

FuzzyDuck1 said:

I’m at a loss as to what to do... I will be actively seeking alternative work although I’m gutted as I absolutely love my job and have no issues with my direct line managers and always have a good relationship with them. They are furious about the whole situation (not with me). 

Hopefully it will come to nothing and HR will get put in their place, but always wise to keep options open.

FuzzyDuck1 said:
Do you know if they are legally allowed to do this “end of month supplement” as from what I’ve read and understand from the Employment Act and Wages Act, it’s not unless they had my express permission in writing. That’s the one part of this whole scenario other than them not working out my pay correctly that I’m most annoyed about as it is due to this “supplement “ that my wages were so down in the first place as wasn’t calculated correctly. I don’t think they understand that this pandemic hasn’t just affected the company, it’s affecting its employees too and by withholding 20% of 11 days pay when those days have been worked isn’t acceptable. Plus they get the CJRS claim money back within 7 days of putting in the claim. Almost like they are using their employees as a cash flow solution. I was almost £500 down on my usual take home pay due to this. They’ve rectified some of it but I’m still without a considerable amount of money owing to me. 

My understanding is no, my suspicion is that it would be an illegal deduction and also in breach of the CJRS.

FuzzyDuck1 said:

Also... there is more than one HR manager that the investigator could have gone to in order to seek clarification but if I’m honest I would have expected them to ask the companies solicitors considering the serious implications this could have. I’ve never wanted to cause an issue for my employer. However I expect processes to be followed correctly and for things to be done properly going forward as that’s what they expect from me in my job. Not looking for anything like compensation, only my missing money and for process to be followed going forward. Thanks 

I imagine they are currently trying to stop anyone further up finding out, if they have breached either the CJRS or employment law there will be some serious implications for those who have done so, in all likelihood they could be fired, I suspect that is why they are attempting to keep the whole matter within the HR department. 

Just to be clear you have not caused an issue for your employer, whoever had devised this course of action has. There would be a reasonable probability of a CJRS audit at some stage if the company is of a reasonable size and the penalties if found at that stage would be far more severe, at this stage they would just be able to correct their claim on the next claim with HMRC and rectify their procedures and payments to staff. 

MattMattMattUK

FuzzyDuck1 said:

I understand what you say about HR thinking i am an now an “awkward “ employee”... however, as the investigating manager (he works directly under the director) I would have thought he’d have been more concerned with having a HR manager spouting out untruths around the law to me and stating in writing that she thinks I should go to a solicitor to get my facts straight and to include all the documents that she bases her theory on. And then me proving her wrong .... she’s employed to know the law surrounding employment laws and has worked against the company in goading an employee to seek legal advice! Surely that’s gross misconduct on her part for putting the company in harms way in the first instance? 

HR departments are notoriously difficult and stubborn, in many companies they seem to be a law unto themselves. I imagine at this stage he could be more concerned with covering his rear, especially if he was the one who signed off on these policies. 

FuzzyDuck1 said:

I have it confirmed in writing that SHE implemented the “end of month supplement” which I don’t think is legal anyway. Although I’d not take any pleasure what so ever for her to lose her job over this, I don’t see why I should lose mine. 

I suspect she is attacking anyone she can in an attempt to hold onto her job, for HR to devise a system which breaches CJRS and is in breach of employment law is a serious matter. If she has done this independently then that is an even bigger issue, she should have had it checked, both by colleagues and the company solicitor as you have said they have one, as well as accountants and finally the director, that she has instigated this off her own back places the fault squarely on her.

FuzzyDuck1

MattMattMattUK said:

FuzzyDuck1 said:

I understand what you say about HR thinking i am an now an “awkward “ employee”... however, as the investigating manager (he works directly under the director) I would have thought he’d have been more concerned with having a HR manager spouting out untruths around the law to me and stating in writing that she thinks I should go to a solicitor to get my facts straight and to include all the documents that she bases her theory on. And then me proving her wrong .... she’s employed to know the law surrounding employment laws and has worked against the company in goading an employee to seek legal advice! Surely that’s gross misconduct on her part for putting the company in harms way in the first instance? 

HR departments are notoriously difficult and stubborn, in many companies they seem to be a law unto themselves. I imagine at this stage he could be more concerned with covering his rear, especially if he was the one who signed off on these policies. 

FuzzyDuck1 said:

I have it confirmed in writing that SHE implemented the “end of month supplement” which I don’t think is legal anyway. Although I’d not take any pleasure what so ever for her to lose her job over this, I don’t see why I should lose mine. 

I suspect she is attacking anyone she can in an attempt to hold onto her job, for HR to devise a system which breaches CJRS and is in breach of employment law is a serious matter. If she has done this independently then that is an even bigger issue, she should have had it checked, both by colleagues and the company solicitor as you have said they have one, as well as accountants and finally the director, that she has instigated this off her own back places the fault squarely on her.

This is why I am entirely gob smacked that they went to her for advice surrounding my grievance in the first place! I understand they could have spoken to her as a complaint was put in for her side of the story (fair)  but her “untruths etc” were in writing for the investigating manager to see. Therefore if it’s disputed they should have made sure proper legal advice was sought independently. He actually stated that he’d spoken to her and had assurances from her that they were doing things correctly (exactly my point of the grievance that she is incorrect). In my grievance I said if they have any documentation to prove my stance wrong I’d gladly apologise. Last week he confirmed he was “waiting for advice from HMRC”... asked to see it as this would have shut me up on this point (even though I can’t see them being advised anything that wasn’t in the cjrs Treasury direction). But he said it was “done by phone”. I suspect this was never done as (excuse my expression here) it would have been like standing in front of HMRC with their pants down. He’s based his outcome solely on this HR managers stance and that alone. When I told him my grievance was around said HR manager in the first place so why did he take her version when it is her version I’m disputing, he said “I didn’t realise your complaint was about her”!!! It’s written throughout of my grievance very clearly and backed up! I’m so mad it’s unbelievable. 

I can say for sure that none of my points have been taken seriously at all especially surrounding my request for proper process to be followed surrounding furlough as my line manager called me yesterday to say there was a management meeting to inform the managers to furlough any time not worked even if it’s half an hour. So employees won’t know from day to day how anything will affect them which is so wrong on so many levels. Obviously the company think this HR woman is above the Treasury and doing absolutely nothing to ensure they are doing things correctly going forward to protect the company in case of audit from HMRC which I agree seems imminent so they can recoup any money where possible from the claimants. 

FuzzyDuck1

I’m just completing my ACAS early conciliation form. Other than my calculations as to why my wages are short, can you please advise as to what other information to supply? Also, I’ve not had my letter of outcome yet (as there wasn’t one when he called me yesterday and needed to “type one up at my request “... do I need to wait until this has been received to complete my form? ACAS have given me 5 days to complete and call them to discuss further. 

Secondly, what would you advise I put in my “grievance appeal” to my employer? Thanks