Royal Mail v mfpa - alleged overpayment of allowances

[mfpa]

A solicitor called "Spratt Endicott" has issued a claim against me on behalf of my former employer, Royal Mail PLC, in respect of an alleged overpayment of allowances in mid-2005.

Following a bogus conduct case in May 2005 I was moved to a different duty within the same delivery office. Some 2 months later the HR department reduced my allowances.

I complained; when they refused to reinstate the allowances I told them to resolve the matter by discussion with my union. They failed to do this. This cycle was repeated.

Royal Mail claim that I was overpaid for the two months. My view is that I was entitled to the existing level of allowances until my employment with Royal Mail ended on 31st January 2006 due to no financial penalty being awarded or allowed in conjunction with a "Serious Warning".

The money was received in good faith and I had no reason to doubt the matter would be favourably resolved through the usual IR procedures.

Whenever Royal Mail has contacted me since I have referred them back to the union. When Spratt Endicott contacted me prior to issuing their claim I referred them back to Royal Mail for correct resolution of an industrial relations matter through discussion with the communication workers union.

The relevant Conduct Code is HERE and discipline penalties are described about halfway through the document at section 14.

The conduct penalty awarded was "A Serious Warning to stay on record for a period of two years with the associated penalty of a transfer to delivery duties".

I rely on the fact that (in contrast to some of the penalties available for a "Major Offence") the description of "Serious Warning" accompanied by "Disciplinary transfer to another job within the manager's area of authority" includes neither the possibility of loss of earnings and pension entitlement nor the duty to take full account of personal hardship before its imposition.

Royal Mail's claim is for £351.78 plus interest, court fees and solicitor's costs - a total claim of £468.84. My counterclaim would be for £1204.84 plus the relevant interest, fees and costs.

I would also point out that since being harassed out of Royal Mail I have been in lower paid employment and could not afford to give them £468.84.

	Hardship By and large the "harship" provision in the FSA waiver is a myth which is intended to create a sense that the banking industry is sufficiently well-intentioned to act fairly towards its customers even though their right of access to the courts has been blocked. In fact there are very few guidelines as to procedure and very little definition of "hardship". One unfortunate spin off is that many people in difficulty get their hopes up and go to considerable lengths to plead hardship to their bank in order to get a refund or partial refund of their bank charges only to be refused. Neither the courts nor the FOS have the power to order a bank to make a charges refund on the basis of hardship. We hear of some people obtaining a partial refund quite easily. Others have obtained money by being very persistent - but mostly we hear that people are refused. Even benefits claimants do not automatically receive hardship refunds. By all means try to get a bank charges refund on the basis of hardship - but don't bank on it!

	Are you letting your bank keep your money Are you giving away thousands of pounds?? Many people aren't claiming all of the money they are entitled to when they make their bank charges claims. You have been forced to pay unfair bank charges. Have you forgotten that your bank has charged you inteest on those charges? If you are overdrawn and the bank owes you charges - then your overdraft is made up of charges - money which you bank owes you. Yet you are paying interest to the bank - on your own money!!! - a nice little earner for your bank. Follow this link to see the discussions on this. You might even double the size of your claim.

[mfpa]

The defence and counterclaim has to be in by next Tuesday (20th Feb 2007).

This is my draft Defence:-

The Claimant alleges there was an overpayment of monies to the Defendant. The Defendant avers that there was actually an underpayment.

All monies the Claimant paid to the Defendant were received in good faith, with every expectation the dispute would be resolved through the usual Industrial Relations procedures and the underpayment rectified.

In May 2005 the Claimant awarded the Defendant a penalty under the Royal Mail Conduct Code of "A Serious Warning to stay on record for a period of two years with the associated penalty of a transfer to delivery duties". The description of that penalty does not provide for "loss of earnings and pension entitlement", which is reserved to penalties available with the award of a "Major Offence".

In July 2005 the Claimant reduced the weekly allowances paid to the Defendant and alleged there had been an overpayment for eight weeks. The Defendant has always refuted this allegation and made an initial, unsuccessful challenge via his line manager. Subsequently the Defendant has referred all approaches regarding the matter to the Communication Workers Union for resolution by discussion/negotiation.

The Defendant avers that the payment of reduced allowances amounted to a deduction from the Defendant's wages, contrary to Section 13 of the Employment Rights Act 1996.

This deduction was ongoing from 25th July 2005 until the Defendant was forced to leave the Claimant's employ on 31st January 2006, a period of 27 weeks and two days.

____

And "reasons for making the counterclaim":

Having repeatedly ignored the Defendant's requests to settle an industrial relations matter by discussion/negotiation with the recognised trade union, the Claimant has chosen to pursue through the Courts a debt that is not owed.

This has left the Defendant with few options other than to claim through the Courts the monies owed by the Claimant.

____

Any thoughts would be appreciated.

At moment I am photocopying evidence to accompany form EX160 as I cannot afford the counterclaim fee.

[mfpa]

The defence and counterclaim was delivered to the court yesterday by recorded delivery, along with my application for remission of court fees.

Don't know whether the court will grant the remission of fees but today I received the Allocation Questionnaire, which must be returned to my local county court by 8th March.

Looking around to see which information on the forum is relevant to my case.

Will be ticking the box requesting a one month stay to attempt settlement because

(1) if a stay were ordered, it would give me breathing space.

(2) by applying for remission of court fees, I have shown (or will have shown it if/when I tell them) that I don't have any money to give them anytime soon in the event they won.

(3) I have "upped the ante" for them by counterclaiming. Presumably they will want to defend the counterclaim, so I shall have to wait and see their defence - to be simple it will have to be very sneaky.

	County Court guidebook by Judge Patricia Pearl Follow this link to read the review of this excellent Small Claims Guidebook. This comprehensive and very accessible guide will take you through the process of suing or defending a claim. This guide will help you take control of your litigation and make you more confident about doing it yourself. Applies to England and Wales

[mfpa]

No response yet to my application for remission of court fees.

Working on the Allocation Questionnaire, which has to be at my local county court by 8th March (2 days).

	County Court guidebook by Judge Patricia Pearl Follow this link to read the review of this excellent Small Claims Guidebook. This comprehensive and very accessible guide will take you through the process of suing or defending a claim. This guide will help you take control of your litigation and make you more confident about doing it yourself. Applies to England and Wales

[kennyparkroad]

no-one commenting on this,

really interesting thread, unfortunately, i dont know if i could offer any advice!

Does someone out there know how to help this man? (although i must say your doing a crackin job yourself mate)

[kennyparkroad]

Have you sent them an Subject Access Request yet?

	Subject Access Request A Subject Access Request is a demand which you can make to any organisation to disclose any personal information which they hold on you. The right to disclosure of data is provided by the Data Protection Act. There is no time limit. The organisation is obliged to reveal everything they have about you - which you ask for - as far back as you ask for. There are very few exceptions. It does not matter whether the data is held on microfiche, in an archive, on tape, in a cardex system, in sound recordings or in screen notes. Some companies are saying that they do not have to disclose where it would be difficult to do so - "disproportionate effort". This is untrue. Disproportionate effort refers to something else under the Act. If you are seeking bank charges information then you should ask for "all data held on you" and you should make it clear that you want everything as far back as it goes. Your bank may try to kid you that they only have 6 years of data. Do not be put off by excuses. Do not accept being fobbed off. It is not in your bank's interest to make full disclosure to you. This means that it is in your interests to get it. If you have not started gathering your bank charges information yet, then you should start now. There will soon be a big rush once the OFT test case has been settled. Get all of your bank account informtion as far back as possible. At least as far back as 1995. If your bank says that they don't keep data as far back as this, don't accept it. Be persistent. They've got what you need in some form or other.

[mfpa]

Originally Posted by kennyparkroad

no-one commenting on this,

really interesting thread, unfortunately, i dont know if i could offer any advice!

Does someone out there know how to help this man? (although i must say your doing a crackin job yourself mate)

Thanks for your interest, kennyparkroad. I had begun to wonder if anyone had read my thread.

Originally Posted by kennyparkroad

Have you sent them an Subject Access Request yet?

There was no need for an Subject Access Request as Royal Mail and Spratt Endicott have both provided more info than I need, several times.

	Subject Access Request A Subject Access Request is a demand which you can make to any organisation to disclose any personal information which they hold on you. The right to disclosure of data is provided by the Data Protection Act. There is no time limit. The organisation is obliged to reveal everything they have about you - which you ask for - as far back as you ask for. There are very few exceptions. It does not matter whether the data is held on microfiche, in an archive, on tape, in a cardex system, in sound recordings or in screen notes. Some companies are saying that they do not have to disclose where it would be difficult to do so - "disproportionate effort". This is untrue. Disproportionate effort refers to something else under the Act. If you are seeking bank charges information then you should ask for "all data held on you" and you should make it clear that you want everything as far back as it goes. Your bank may try to kid you that they only have 6 years of data. Do not be put off by excuses. Do not accept being fobbed off. It is not in your bank's interest to make full disclosure to you. This means that it is in your interests to get it. If you have not started gathering your bank charges information yet, then you should start now. There will soon be a big rush once the OFT test case has been settled. Get all of your bank account informtion as far back as possible. At least as far back as 1995. If your bank says that they don't keep data as far back as this, don't accept it. Be persistent. They've got what you need in some form or other.

[mfpa]

Received the message below from Spratt Endicott today.


===8<==============Origin al message text===============

Royal Mail Plc -v- Yourself Claim No: XXXXXXXX

Without Prejudice

We have received our client's further instructions in the above
matter.

Whilst our client has no doubt that its claim will succeed at trial,
it is mindful of the commercial realities of pursuing the matter and in
particular the costs that have already been incurred and will continue
to accrue should the matter proceed any further. In view of the size
of the claim, the Court will allocate the matter to the "Small Claims
track" for hearing which will mean that neither party is likely to
recover its costs.

In the circumstances, our client is prepared to take a pragmatic view
in an attempt to resolve this dispute and is agreeable to settlement on a
"drop hands" basis, whereby each party agrees to discontinue its
respective claim and to bear its own costs.

Please confirm by return whether you are agreeable to settlement on
the above basis.

===8<===========End of original message text===========


In the first instance, I shall reply that I need to consider my
position.

Firstly, my acceptance would depend on the conditions attached.

Secondly, to "split the difference" is also a pragmatic approach -
and their claim is under £500 whereas my counterclaim is nearly
£1300...

Perhaps try to negotiate, in view of the distress they have caused
me?

Any thoughts?

In the meantime, I continue with my Allocation Questionnaire.

	County Court guidebook by Judge Patricia Pearl Follow this link to read the review of this excellent Small Claims Guidebook. This comprehensive and very accessible guide will take you through the process of suing or defending a claim. This guide will help you take control of your litigation and make you more confident about doing it yourself. Applies to England and Wales

[mfpa]

This is one option for my second reply (after "have to think about it"). Perhaps a bit extreme? Should I go for somewhere between?

[Edit] In the end I did choose this line and the wording I went with is here in post number 14 of this thread.[/Edit]


Without Prejudice

I note your client's opening position in this negotiation.

Whilst I am confident of success at trial, I recognise that your
client's costs would likely dwarf my claim. In contrast, my own
costs are limited to stationery, postage, phonecalls and
electricity - I have not charged for my time and my present
parlous financial situation forced me to submit a form EX160
"application for a fee exemption or remission" in lieu of the £120
counterclaim fee.

In the circumstances, your client's interests would be better
served by settling for the full amount of my claim than by
proceeding to Court. Therefore, my opening position is that your
client pays me the full amount of my claim, in addition to each
party agreeing to discontinue its respective claim and to bear its
own costs. You will note I have indicated on form N150 "allocation
questionnaire" my wish for a one-month stay to attempt to settle
the claim.

[half ax I]

mfpa

I think this probably revolves around the allowances and would depend on what they were for, maybe extra for performing specific additional duties and not part of salary, so move to delivery duties meant you were no longer doing the additional duties although basic salary remains the same and so could be (loosely) viewed as no financial penalty. I realise in actuality it means lower take home.

I suspect they could find some arguments if they have the will to do so. I would probably take the cop out approach and agree to put it to bed. However it is your choice and you know better than anyone else the specifics of your situation.

Good Luck with whichever approach you take. There is an argument that if you don't ask you don't get.

[mfpa]

Originally Posted by mfpa

In the meantime, I continue with my Allocation Questionnaire.

Any thoughts on whether I should include with the AQ any of the following?

• a copy of the Royal Mail Conduct Code (either in full or just the section on "DISCIPLINE PENALTIES")?

• The Employment Rights Act 1996 (or just Section 13 of it)?

	County Court guidebook by Judge Patricia Pearl Follow this link to read the review of this excellent Small Claims Guidebook. This comprehensive and very accessible guide will take you through the process of suing or defending a claim. This guide will help you take control of your litigation and make you more confident about doing it yourself. Applies to England and Wales

[mfpa]

Originally Posted by half ax I

I think this probably revolves around the allowances and would depend on what they were for, maybe extra for performing specific additional duties and not part of salary, so move to delivery duties meant you were no longer doing the additional duties although basic salary remains the same and so could be (loosely) viewed as no financial penalty. I realise in actuality it means lower take home.

The situation is pretty complicated.

As a former union rep, I knew that national agreements covering "situations where an individual is displaced and loses a level of pay as a consequence of business driven change" protected various chunks of my allowances for specified periods. (But only because the bogus conduct case resulted in a penalty that did not include loss of earnings and pension entitlement.)

Without the protection afforded by these agreements it would be as you suggest.

Originally Posted by half ax I

I suspect they could find some arguments if they have the will to do so.

Indeed but they don't normally have to bother.

Originally Posted by half ax I

I would probably take the cop out approach and agree to put it to bed. However it is your choice and you know better than anyone else the specifics of your situation.

Good Luck with whichever approach you take. There is an argument that if you don't ask you don't get.

Tempted to tread with care as they can be vindictive beggars. OTOH, I do not want to settle too cheaply...

[mfpa]

Originally Posted by mfpa

Received the message below from Spratt Endicott today.


===8<==============Origin al message text===============

Royal Mail Plc -v- Yourself Claim No: XXXXXXXX

Without Prejudice

We have received our client's further instructions in the above
matter.

Whilst our client has no doubt that its claim will succeed at trial,
it is mindful of the commercial realities of pursuing the matter and in
particular the costs that have already been incurred and will continue
to accrue should the matter proceed any further. In view of the size
of the claim, the Court will allocate the matter to the "Small Claims
track" for hearing which will mean that neither party is likely to
recover its costs.

In the circumstances, our client is prepared to take a pragmatic view
in an attempt to resolve this dispute and is agreeable to settlement on a
"drop hands" basis, whereby each party agrees to discontinue its
respective claim and to bear its own costs.

Please confirm by return whether you are agreeable to settlement on
the above basis.

===8<===========End of original message text===========


In the first instance, I shall reply that I need to consider my
position.

I have sent this first reply to their email:-

Without Prejudice

I note your client's opening position and will respond in the next
48 hours.


Still sleeping on what to actually respond.

[mfpa]

Originally Posted by mfpa

Still sleeping on what to actually respond.

And my actual response:-

Without Prejudice

I note your client's opening position in this negotiation.

Whilst I am just as confident as your client claims to be of
success at trial, I embrace the opportunity for a swift conclusion
to this unnecessary dispute.

We both recognise that your client's costs would likely be far in
excess of the value of my claim. Taking a pragmatic view, your
client's financial interests are better served by paying my claim
than by proceeding to Court.

Therefore, my opening offer is a settlement whereby your client
pays me the full amount of my claim without admitting liability,
in addition to each party agreeing to discontinue its respective
claim and to bear its own costs.

Please confirm your client's acceptance or communicate their new
negotiating position in the early part of next week.

[mfpa]

Originally Posted by mfpa

Presumably they will want to defend the counterclaim, so I shall have to wait and see their defence - to be simple it will have to be very sneaky.

I now have their defence to the counterclaim:-

The Claimant denies that there has been an underpayment of monies to the Defendant and puts the Defendant to Strict proof of the alleged underpayment.


They have also sent me their Allocation Questionnaire. I am surprised that they estimate three hours for a hearing, as I think one hour is realistic. They list as their witness the manager responsible for harassing me out of the company. Odd, I would have expected somebody from Human Resources to talk about allowances and national agreements...

	County Court guidebook by Judge Patricia Pearl Follow this link to read the review of this excellent Small Claims Guidebook. This comprehensive and very accessible guide will take you through the process of suing or defending a claim. This guide will help you take control of your litigation and make you more confident about doing it yourself. Applies to England and Wales

[mfpa]

Submitted my Allocation Questionnaire today.

[kennyparkroad]

keep us updated, let us know how it goes, definately one of the more unusual threads on this forum, but great to read, i only wish i knew how to help you!

[mfpa]

Received this reply from Spratt Endicott.

===8<==============Original message text================

Royal Mail Plc -v- Yourself

WITHOUT PREJUDICE

With reference to your email dated 8.3.07 we confirm that the terms of
settlement contained therein are not acceptable and we are instructed
to
progress the matter to trial.


===8<===========End of original message text==============

I think the plan should now be to wait about a week (?) before replying. I'm told they expect me to now beg for the "drop hands" settlement they offered previously...

Also wondering about the merit of replying that I have received their email and I note their client's feigned amnesia of the commercial realities of pursuing the matter.

[asbo11]

bop.

[kennyparkroad]

again sorry i dont know how to help you on this one.

can no-one help with this situation?