"Overpaid" Wages

[Dr Hunter]

Hello,

 

This is the second of two threads regarding issues with my employer. I have worked on a contracted back-shift for the last three years and receive a premium rate of time + 1/4.

 

The shift patterns are the following:

 

Dayshift : 37 hours (straight time)

Backshift : 32 hours (time + 1/4)

Nightshift : 37 hours (time + 1/3)

 

To keep things simple I will refer to weekly pay. On our payslip all backshift employees were paid 37 hours (instead of 32) per week then separately given 32 hours of shift premium (of +1/4).

 

We all queried the "overpayment" with replies coming (not in writing unfortunately) that the wages were correct and were to make things easier if any backshift member had to go to dayshift to do training courses (this happened quite often).

 

This went on for more than four years until one day we were marched individually into a hostile meeting where we essentially accused of fraud for not having been forthcoming with the overpayments, we were also told that the company would be lookinh into claiming back the overpaid cash. As it turns out they dropped this as they didnt have a leg to stand on but still cut our wages by what amounted to around 10%.

 

I should add that our original contract does specify 32 hours (not 37).

 

My questions:

Considering the amount of time we recieved this payment and considering it was justified to us as to why it was made, does this not become a contract of "custom and practise"?

Can they legally cut our wages by 10% with very little (2 weeks) notice?

 

Thanks in advance for any help given

DH

[mariefab]

Yes.

[Dr Hunter]

@mariefab, sorry for my confusion but yes they can cut our wages or yes the contract becomes "custom and practise"?

Thanks for your reply

[Dr Hunter]

The term "custom and practise contract" is defined on the government website as the following (roughly):

Where an employee gets a bonus every Christmas for a couple of years, or a day off every (whatever day) for a couple of years etc etc, although these circumstances are not in the original contract they can be considered contractual by "custom and practise". Therefor the employee becomes entitled to them even though they are not in the original contract.

I feel this applies (almost exactly) to our situation.

[morsy]

Its arguable that the extra 2 hours paid come under "custom and practise" and i would think that it would apply. However I'm sure the employer would not.

 

An employer can change your rate of pay but would need to give notice .... what dose your contract say about notice period or variations of contract?

[Dr Hunter]

@morsy, appologies for being pedantic but it's 5 hours per week difference (a good chunk of our wage).

The employer has made it pretty clear they would fight tooth and nail over "custom and practise" and that they see it as an overpayment (even though the same manager who justified the "overpayment" then went on to claim he knew nothing about it). Unfortunately the justification (although made many times to separate people) was always verbal and never on paper.

Of the top of my head, there is nothing in the contract except the usual 1 month notice before termination of

contract. The closest to "variation" is that we may be required to work overtime or on different shifts for training etc (the justification for the extra money- although this unfortunately is not worded). I will have another look through but the company historically does not mess around with "variations of contract" as there is around 200 employees and a strong (although sometimes unwilling) union presence.

I should further make the point that although there is a large workforce, most of it is concentrated on the day and nightshift with only around 20 people on (my) backshift.

Perhaps this explains a lack of motivation for union involvement.

Thanks for your reply.

[mariefab]

If I have understood the position correctly:

You are contracted to 32 hours. You work 32 hours. They intend to pay you for 32 hours.

Therefore, Yes they can 'cut' your wages to 32 hours pay.

 

Their position would be that they have discovered that they had been mistakenly overpaying you for years and, while they could be lawfully entitled to recover this overpayment, they have decided not to do so. However, they are not prepared/required to continue to overpay you now that they have discovered their mistake.

 

Although you reported the overpayment years ago and were informed that the payment was correct, you can't prove it and they will never admit it.

[morsy]

To confirm do you work 37h or 32h a week or is it that you only work 32h on the backshift but 37h on all other shift.

 

The would mean 5h less pay on the backshift but the same pay on the other 2 shift

[morsy]

@morsy, appologies for being pedantic but it's 5 hours per week difference (a good chunk of our wage). .

 

sorry typo i ment 5 having a blond moment .... wish this text was bigger could see what i type then

[honeybee13]

sorry typo i ment 5 having a blond moment .... wish this text was bigger could see what i type then

 

Hello morsy. If you need to make the text look bigger, you can press the control and + buttons on your keyboard to enlarge it. I hope that helps you.

 

My best, HB

[Dr Hunter]

Morsy, we work 32 hours on the backshift but (very) occasionally have to work 37 hours when working on dayshift for training, holiday cover etc. This is how the overpayment was justified to us, to ease transition, save giving us overtime (for the extra 5 hours) etc.

 

Mariefab, this happened around 3 months ago and after handing in a letter of grievance signed by the entire shift and consulting the union (and to be honest a period of hearing "yes's" clearer than "no's") we kind of ran out of steam with it. It is the more recent unpaid holiday/unlawful deduction thing that has renewed interest.

I should also point out that there was very bad vibes toward the shift from management at the time (of "custom and practise" discussions) with some fairly petty (but unprovable) behaviour on their part.

[morsy]

Hello morsy. If you need to make the text look bigger, you can press the control and + buttons on your keyboard to enlarge it. I hope that helps you.

 

Thanks ..... it does for reading the forum but not so good for the window you type in ...

[honeybee13]

Right, I see your problem. This may not be the solution, but as I'm typing this, the icons above offer me a choice of font size, plus colours etc. I don't know if that helps.

 

Sorry if it doesn't, I'm a bit of a technophobe.

 

My best, HB

[morsy]

Unfortunatly they can change your terms and conditions and rates of pay providing they give you notice as outlined in yourcontract.

 

So if they have paid you 37h in the past they can change that going forward by giving you notice to change your terms and conditions to only pay you 32h even if the past over payment has been seen as a custom and practise.

[Dr Hunter]

Yep, we did pretty much run out of steam with the whole thing and decided to take it on the chin.

Although it makes no odds other than to perhaps show that management can be real expletives at times here are another couple of events regarding the matter.

At the very time we were individually frogmarched in and essentially accused of fraud and theft, there was a backshift guy working on dayshift under the explained terms. He asked his line manager if he could finish early in the week (having completed his 32 hours) to which he was refused and reminded of why we were paid the extra money.

Salt in the wound: the manager who accused us of fraud (and adimently denied having any knowledge of the overpayments) had, a month earlier, told a potential employee during his interview about the "extra" money as an incentive to get him on to the shift. All of this is denied of course and the "new" guy on the shift is (sensibly) not going to come forward with it.