somewhat complex problem..contracts/overtime....Legal stuff **WON**

[elpulpo]

Section 13, Employment Rights Act 1996.

You can find it in full at Office of Public Sector Information

 

I was just having a look to make sure it's there and may have noticed something that could help you. It appears to make far greater provision for your specific situation than I'd imagined.

I'll post ya later.

[elpulpo]

Don't get excited. It might well not.

[elpulpo]

Payments to employer

 

15 Right not to have to make payments to employer

 

(1) An employer shall not receive a payment from a worker employed by him unless—

(a) the payment is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or

(b) the worker has previously signified in writing his agreement or consent to the making of the payment.

(2) In this section “relevant provision”, in relation to a worker’s contract, means a provision of the contract comprised—

(a) in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer receiving the payment in question, or

(b) in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.

(3) For the purposes of this section a relevant provision of a worker’s contract having effect by virtue of a variation of the contract does not operate to authorise the receipt of a payment on account of any conduct of the worker, or any other event occurring, before the variation took effect.

(4) For the purposes of this section an agreement or consent signified by a worker does not operate to authorise the receipt of a payment on account of any conduct of the worker, or any other event occurring, before the agreement or consent was signified.

(5) Any reference in this Part to an employer receiving a payment from a worker employed by him is a reference to his receiving such a payment in his capacity as the worker’s employer.

16 Excepted payments

 

(1) Section 15 does not apply to a payment received from a worker by his employer where the purpose of the payment is the reimbursement of the employer in respect of—

(a) an overpayment of wages, or

(b) an overpayment in respect of expenses incurred by the worker in carrying out his employment,

made (for any reason) by the employer to the worker.

(2) Section 15 does not apply to a payment received from a worker by his employer in consequence of any disciplinary proceedings if those proceedings were held by virtue of a statutory provision.

(3) Section 15 does not apply to a payment received from a worker by his employer where the worker has taken part in a strike or other industrial action and the payment has been required by the employer on account of the worker’s having taken part in that strike or other action.

(4) Section 15 does not apply to a payment received from a worker by his employer where the purpose of the payment is the satisfaction (whether wholly or in part) of an order of a court or tribunal requiring the payment of an amount by the worker to the employer.

 

 

I hadn't realised that this existed, don't know how it applies to your situation.

[elpulpo]

I must admit that I'd not noticed these 2 sections in the ERA before. I was aware of Sec.13, but didn't realise this existed. If I'd only scrolled down a few clicks earlier!

I have to say, having read your posts over the course of time, that I was a bit sceptical of your prospects for success - given that they didn't actually deduct the money from your wage, rather you offered to pay.

I didn't say anything 'cos I didn't want to pee on your bonfire, so to speak.

 

This could put a different slant on things though.

Did you give your prior, signed consent to making the payment?

[k13 wjd]

I have not given any consent - and defo havent signed anything. I've still not received a copy of my contract either !!!!

 

 

i was looking for a part of it which refered to wages being withheld - but there doesnt seem to be anything too specific.

[k13 wjd]

I'd seen that before- and refer to it in my ET speech - ive been calling it a deduction, but its actually a payment - But, given that my wages were witheld until the payment was complete, Acas suggested it would be classed as a deduction from wages.

[elpulpo]

So you were aware of Sec.15? You included it in your ET1?

You should be on solid ground here.

[elpulpo]

And you never had, at any time, anything in writing that the employer maintained the right to be compensated by the employee for any loss?

[k13 wjd]

no - i wasnt even given a employee handbook until the day i was sacked !!!!

 

Acas pointed out that its not whether i offered to pay, or if they forced me to pay - but indeed whether the payment can be justified as legal.

 

While im here, anyone know if there are any words which should be included in a witness statement.....such as "i, XXX, of 5 the street, such and such, england, Swear that this statement is true, and that i am of sound mind. i gave this statement of my own free will, and am not being paid to give it "

 

or will a quick letter style statement do, with a signature ?

[elpulpo]

Had you been subjected to disciplinary action regarding the matter you were required to pay for?

[k13 wjd]

no - nor was there any investigation. the police were not called, i was not asked to provide a written statement, nor was any insurance company informed.

 

For reference i clipped a concrete post with the bumper of a lorry.

[elpulpo]

You swear an oath prior to giving evidence.

Hope your full name isn't as ridiculous as mine.

[k13 wjd]

i meant for a written statement of events, from a witness who won't be attending...

found it though, it needs to include the words

"This statement is true to the best of my knowledge and belief."

[elpulpo]

Ah, I see.

Just one thing, K13.

If they didn't provide you with a written statement of particulars of employment, you can request that the ET compensates you with either 2 or 4 weeks wages because of that failure. Don't understand why it's 2 or 4 though.

Make sure you put that in your SOL.

[elpulpo]

What size is this company?

[k13 wjd]

at the time of my dismissal it was aroiund 25-30 employees.

 

ive shown 1 months wage in my SOL - as basic compensation for unfair dismissal....

 

Proving they didnt give me a copy of my particulars is near impossible though !!!

[elpulpo]

Will they have a copy of particulars with your signature on it?

You've requested a copy - have they provided one?

If the answer is no and no, I can't see how they can argue.

[k13 wjd]

no they won't.

 

I did request a copy, and asked a total of 13 times during the conversation that ended in my dismissal. every time i was told " your working them" or they exist" but never got to see them.

 

either way, they didnt include them in my subject access request.

[elpulpo]

no they won't.

 

I did request a copy, and asked a total of 13 times during the conversation that ended in my dismissal. every time i was told " your working them" or they exist" but never got to see them.

 

either way, they didnt include them in my subject access request.

They haven't got an argument, as far as I can see.

What did they include in the SAR?

[k13 wjd]

not much...

application form ( completed)

my cv

copies of my driving licence

new employee info - next of kin, bank details, salary info/

 

and my ori. opt into the WTD.

[elpulpo]

The first thing a reputable employer will slap on the table when involved in a dispute with an employee is a copy of the written statement/contract. By not refering to one at any time, they're conceeding that no such document exists.

[k13 wjd]

i presume wearing a suit to my ET would be a sensible idea ?

[elpulpo]

Yes. If you're struggling smart shirt, pants and tie.

[k13 wjd]

pants ?? you americanised ?

 

suit it is.

[elpulpo]

It slips out sometimes. I lived there for a year.