Illegal deduction of wages/breach of contract?

[seq]

Hi all,

 

I'm writing on behalf of my OH, I'll try to be as brief as possible..

 

He has been working for a coach/bus company for nearly 3 years now as a pcv driver. He started as a coach driver, but in June 2008 the company gained a few council funded bus routes, to which the company put up a notice asking volunteers to join the bus service which came with enhanced rate of pay, and better guaranteed hours.

 

He jumped at this and has been on the bus service ever since. In September there was an unsigned memo attached to his payslip, telling them that from 1st October 2009 they will be deducting 1hr pay/day for lunch. They claimed that the arrangement to pay them straight through was only Ad-Hoc basis and was only to entice drivers to join the bus service. and as such did not form part of their contract.

They also gave an option to rejoin the coach side of the business.

 

My OH first phoned his supervisor told him he's not happy about this but he was brushed off. I advised him to put in a Grievance which he did, and he finally had his meeting on 11/02/2010.

 

He could not find anyone to accompany him to the meeting so I advised him to record it.

 

There is nothing in his contract that allows them to deduct anything, but the MDs reasoning at the meeting was simply that he has asked a lawyer and there is nothing in his contract to say that they CANNOT do this!!

 

I have read through ERA1996 s13 and as I understand it if it's NOT in the contract then they CANNOT deduct anything?

 

We are waiting for the outcome of the grievance in writing, so we can appeal this. Any ideas?

 

Thanks.

[elpulpo]

The MD is talking cobblers, IMO.

As you say, ERA Section 13 covers it.

Were minutes taken at the grievance hearing?

[seq]

Hi Elpulpo, thanks for replying!

 

I believe minutes were taken, but he was not shown them or asked to sign.

He did however follow my advise and recorded the meeting, and yes the md actually said that...

 

Unfortunately my OH is not very legally minded, so was not confident enough to argue at the meeting. I have printed out piles of information to read through so he'll get his head around it.

 

This will potentially cost the company quite a bit, as if they give in, they'll have to do the same for all those affected, and there's a fair few.

[elpulpo]

Presumably the outcome of the appeal will come back a negative. I'd request a copy of the minutes.

Like you say, they'll fight this all the way because it's worth a lot of money to them.

[seq]

Hi,

 

They already told him the outcome was negative. they said they'll put it in writing, but we haven't received anything yet. I think they may want to run it through their legal team first..

 

I believe they have made a total mess of this, even their option to go back on the coaches would mean less pay and less hours.

 

The MD could not answer when asked about the ad-hoc, as the the memo was the first anyone had heard of it! Seems like they make it up as they go along to suit themselves.

 

Also I cannot see how they can claim that it doesn't form a part of their contract, after all they were paid straight through from June 2008 to October 2009, I'd like to think that this would be an implied term by custom and practise?

 

Will request copy of the minutes, meanwhile any ideas of the wording for the appeal?

[elpulpo]

I'd wait for the written outcome of the greivance first.

Then I'd keep the appeal statement short and sweet.

'Give us what we want or we'll talk about it in court'.

There's no union membership?

[seq]

No union. How long should we wait for the written outcome? considering it took them months to arrange the meeting in the first place..

 

My OH has been asked to deduct the 5hrs from his timesheet, but has refused and is still marking his full hours worked. and funnily they don't deduct it for Saturday? Some weeks they've taken 4 hrs, some weeks 2hrs and the last one they took 6hrs even he didn't work the Saturday!

 

Go figure...

[elpulpo]

Does his original contract state his working hours and breaks?

Does he actually take this break they're making the deduction for?

It shouldn't take any time for the written decision, given they've verbally informed him. If it's been over a week, I'd write to them.

[seq]

No, his contract is very basic, no specific terms. He does have breaks, but the nature of his work as a bus driver means that he takes his breaks on the road most of the time and has to stay near his vehicle. they moaned at him once for going back to the depot for his break because excess mileage.

 

Now he only goes back to the depot for vehicular reasons (fuelling, maintenance). He spends more time on that bus than he does at home!

 

On the coaching side, if the driver only does a schoolrun in am & pm and nothing in between (ie.yard duties) they are deducted lunch, but if they have a private hire or any other job between schoolruns they get paid straight through.

 

Given that my OH starts his day at 6am and doesn't finish until 7pm and is out all day, he is understandably ****ed off!

[seq]

Hi all,

 

We have now received the outcome of the grievance in writing,

I'm hoping someone could advise us on the next step..

Also I got the dates slightly wrong on my op, as I did not have the documents at hand at the time, apologies.

 

This is what they are saying:

 

"1. The decision to pay for lunch breaks was taken previously at the absolute discretion of the Company. This decision was applied arbitrarily throughout the organisation with some employees being entitled to paid lunch break some of the time and did not give rise to a contractual right for all employees to be paid during all lunch break periods.

The Company's decision to stop paying any of it's employees during their lunch break was a proper exercise of it's discretion and does not constitute a variation of your contract of employment requiring your consent.

The Company had every right to exercise it's discretion in this way and did so in good attempt to save costs and avoid more drastic cost cutting measures such as e.g. redundancies for one or more members of staff.

 

2. In the alternative if you had a contractual entitlement to receive payment during your lunch break, which for the avoidance of doubt is firmly denied by the Company, then the change which was put in place in August last year to your terms and conditions had now been accepted by you."

 

Now the date is correct, but what he is forgetting is that the grievance was dated 28th September 2009, original meeting was scheduled for 12th October 2009 and before that it was raised verbally several times but ignored. Unfortunately my OH fell ill for 8 weeks so could not attend the meeting then, and then annual leave over Christmas, and then they were just dragging their heels!

 

Is there such thing as "absolute discretion" in employment law? if so I haven't found it...

 

Any ideas please?

 

TIA

[Bigredbus]

To decide on 'Custom and Practice', one must answer a few questions:

 

a) What was the initial intention of the employer?

b) Has the policy been drawn to the attention of the employees?

c) How long has the practice been followed without exception?

d) How many times the practice has been followed?

e) Are payments made automatically?

f) Is the practice sufficiently well known?

g) Do employees have reasonable expectation that the payment will be made?

 

The 'absolute' is only there to lay emphasis on the 'discretion'...

[elpulpo]

I agree with BRB above.

Personally, I think the company's argument is a load of barlocks.

How about just refusing to do any work anymore, and arguing that your previous decision to drive a bus in exchange for your salary was at your 'absolute discretion' and in no way a contractual agreement?

[postggj]

This Is Hogwash By The Bus Company

 

They Cant Do Deductions From Your Wages

No One Can With Out Your Consent Or A Court Order

 

I Was Once Overpaid In A Year By 200 Quid

 

I Made Royal Mail Do Deductions Of A Quid A Week

 

They Cant Touch Your Wages

 

Being A Psv Driver, Sorry Pcv Driver

 

How Many Hours Is He Working In A Week

Is It A 4 Day Or 5 Day Week

An Eleven Hour Break Is The Law Between Shifts

[seq]

Hi,

Thanks for all the replies!

To BRB, I shall try and answer the questions.

 

a) All he saw was a memo on the notice board April 2008 asking people to join the bus service, with the additional benefits of enhanced hourly rate, holiday entitlement, and guaranteed hours. This variation we have confirmed in writing, and that is all there was.

 

b) He knows he was paid straight through now he's not.

 

c) He was paid through from the start of the bus service June 2008 to August 2009 to when the memo was given.

 

d) See previous answer.

 

e) The drivers hand over their timesheets, upon which the wages are calculated, and then paid by BACS weekly.

 

f) See answer b.

 

g) Welll wouldn't you...? :-|

 

To Elpulpo, LOL I must say I thought something of those lines when I first read the letter...

 

To postggj,

 

You'll be horrified, he works Mon-Fri one week and then Mon-Sat the other. His short week is approx. 66hrs, the long one 77hrs. He is aware of the working time regulations and driving law, however he has not signed any optout. (which he would anyway, being a workaholic!)

 

I hope I have answered all the questions, thanks again for all of your help!

 

I must now start drafting the appeal.

Edited February 21, 2010 by seq
Typo!

[postggj]

Does Not Matter Signing The Opt Out

 

No Employer Can Make You Work More Than A 48 Hour Week

 

Being A Bus Driver, The Bus Company Is Breaking The Law

 

When A Week Has Finished You Must Have A 48 Hour Break Till Your Next Shift

 

I Believe There Is Now No Opt Out

Its Law

 

Thats Why All Vehicles 7.5 Ton And Above Are Now Restricted To 54 Mph

 

You Need To Check With The Hse

 

Health And Safty Exec

 

Its Stops People Being Exploited And Falling Asleep At The Wheel

 

He Will Burn Himself Out

[seq]

Unfortunately there seem to be some confusion over the EU working time regulations and the driving regulations.

 

His work is covered by the domestic driving rules, which is NOT as strict as the EU driving rules. I am myself a coach driver and the nature of MY work makes it fall under EU rules, where as I have to use a tachograph record of any journey I make.

He on the other hand does not have to. I believe there are certain exceptions in WTR (correct me if I'm wrong) that allows this. Thanks!

 

He's already looking elsewhere, you're right he is burning himself out!

Edited February 21, 2010 by seq
Forgot to add!

[davepoth]

RMT - The Road Transport Directive

 

States that the average working week for a local bus driver should be 48 hours (although an individual opt-out is allowed) so the fact that the whole company does more than that could be a little embarassing. If any driver is going more than 30 miles from base then they are covered by the EU regs which is even worse because the opt-out isn't allowed. Look at this carefully, and then have a word with the managers do explain to them how much trouble they might be in if it applies.

[Bigredbus]

From your answers,

 

a) The employer intended to pay the hour break from the onset (?) of their contract with the council.

b) There was no policy or clause relevant to the hour break being paid, to the exception of that memo on the notice board specifying the benefits attached to the position (no mention of breaks being paid).

c) The practice has been followed since the contract between the company and the council came into force.

d) From your posts, the practice has been followed from 'day one' and consistantly until that memo informed employees that the practice would be discontinued.

e) Payments are made in arrear, weekly, by BACS.

f) Again, from your posts, I assume (I hate assuming! - LOL) that the practice has been to pay all of their drivers...

g) Reasonably, yes... as the practice has started from the onset of the contract between the company and the council, employees had reasonable expectations as per their break hour being paid as it always had and has...

 

[Paragraph deleted as irrelevant now]

 

As per the breaches in driving hours, I would contact both the HSE and the DVLA...

Edited February 23, 2010 by Bigredbus
Correction

[seq]

Hi all,

 

Sorry for not updating sooner, and there's good news and bad news...

 

Good news is that my OH was offered another (bus driving) job, which is ideal as it's located next to my depot so we will be saving a lot of fuel and travelling time! He's waiting for a phone call to confirm start date, so he can give notice to the current company.

 

Bad news, they have invited him to attend a disciplinary meeting next thursday, with a view of dismissing him as he has a final written warning on his file. Basically my OH is guilty of what they claim he does not deny this.

 

Now the dilemma is that he wants to resign in order to start his new job, he has to give 1 weeks notice so if they have the meeting can they dismiss him if he has already resigned..?

 

Also we have sent the appeal re the grievance, but as the new rules they do not have to consider this if he no longer works there.

If so then do we just lodge a claim with the tribunal?

 

He does want to go as far as he can with this, he has never worked for a company with such an attitude towards its employees.

 

He's so happy about this new job, it's a small family company very relaxed, and the hours are much more reasonable. the pay isn't as good but that's a small price to pay!

 

TIA