Employer backpay problem

[Ethelwulf]

I have an employment question!

 

My dad has won some overtime backpay, his boss will not pay him until he signs an undertaking not to pursue or bring any retrospective grievances concerning overtime from the date of the award.

 

He won't sign on principle as he views it as some kind of blackmail

 

Is there anything in employment law that will help break the deadlock

 

Many thanks

[BankFodder]

If he has won the back pay because he's entitled to it under the contract in some way then there is no way that the employer can block it.

 

On the other hand, if he wants a quiet life with his employer in the future then challenging it may not be the best way.

 

Clearly your father's employer is a pretty nasty piece of work and that means, unfortunately, that your father needs to consider very carefully the consequences of any of his actions – even if he has a legal entitlement.

 

It's a very tricky place to be.

[citizenB]

Are there likely to be any further grievances concerning overtime ?

[steampowered]

The Employment Rights Act 1996 sets out several requirements which must be met in order to have a valid settlement agreement for most employment rights. A settlement agreement which does not meet these requirements is legally void. Have a read of http://www.legislation.gov.uk/ukpga/1996/18/section/203.

 

These requirements include that the agreement must relate to 'particular proceedings' and the employee must have received independent advice.

 

If your dad has not been offered independent legal advice, the agreement would be void anyway and would not stop him suing for overtime pay later.

 

He should still check whether he is owed any overtime pay before signing anything. If he is owed any overtime pay, now would be the time to raise it.

[ericsbrother]

I think an explanation of how he "won" the overtimebackpay would save a lot of advice based upon conjecture so tell us what happened if you can and then you will get very specific answers to your query

[Ethelwulf]

If he has won the back pay because he's entitled to it under the contract in some way then there is no way that the employer can block it.

 

On the other hand, if he wants a quiet life with his employer in the future then challenging it may not be the best way.

 

Clearly your father's employer is a pretty nasty piece of work and that means, unfortunately, that your father needs to consider very carefully the consequences of any of his actions – even if he has a legal entitlement.

 

It's a very tricky place to be.

 

Many thanks

 

He was singled out by the new manager because he speaks his mind and therefor he was stripped of this payment in 2013, because the process of taking away the payment was not done correctly he has won the backpay, however the undertaking he is required to sign not only bars him from any retrospective issues it also requires him to do the task for no remuneration.

[Ethelwulf]

Hi

 

I dont know, he has not said anything to me up to now?

If he decided there would be would a different course be advised

 

Many thanks

[Ethelwulf]

Hi

 

I will ask him to look at your suggested link

 

Many thanks

[Ethelwulf]

I think an explanation of how he "won" the overtimebackpay would save a lot of advice based upon conjecture so tell us what happened if you can and then you will get very specific answers to your query

 

Hi

 

My dad does a specific task at work (laundry process) it never was carried out in overtime hours but during the normal working week, the overtime bit comes in because the task is not written down in his JD or TCs, because of this anomaly he was instructed to book two hours per week overtime when he first started the job in 1993 and which was paid to him right up to when the new boss started in October 2013. It was then this new boss decided to take the payment away. He is now required to carry out the task without the extra payment but sign the undertaking.

 

Many thanks

[citizenB]

So he has won his back pay up to the time it was ceased by the new boss.

 

However, they still expect him to do this task - if no actual overtime was required to do the task then I would have thought a simple change of his Job Description/terms and conditions would resolve that ?

[ericsbrother]

it is clear that he can do the job and has done so for years so no adjustment is required unless there is a grading structure that pays this task at a different rate, in which case he should receive the higher payment where applicable, either for the time taken to do it or for his overall job.

I cannot see any reason to sign anything or even a change to his terms and only change the job description of it acknowledges an uplift in grade/pay. This settlement has decided the work is done so there is no argument to be had about that. It is only any difference in pay and if there is none then nothing needs doing. The meployerobviously doenst want a repeat of what has gone before so they want to limit the right to make any claims about anything that happened in the past. Witholding the pay is illegal so consider the point about pay grades and then either he signs to keep things sweet or he whacks in a further claim about the pay grade. His boss wont be in charge of the company purse strings so a grievance about the unlawful withholding will sort that matter out but at what cost to his sanity and job security? If he is up for a long drawn out battle then he will win one but is that what he wants?

[Ethelwulf]

Hi

 

I have read the link to employment rights but being me I am confused.

[Ethelwulf]

Hi

My dad has joined a union to get independent advice, the union official has stated that my dad could not take out a grievance as it dont come under any certain characteristic, black, ethnic, gay or disability etc and it would be the company investigating themselves and the outcome could be bleak.

I am going to tell him to write to his employer about they unlawfull withholding of the award and mention the employment rights act?

[Ethelwulf]

Hi

 

My dad said that all his overtime including the subject matter was stopped in the October 2013 but the rest of the chaps where he works were not, only him so just maybe he may have a claim for retorspective action and maybe thats why his boss wants him to sign the undertaking.

[ericsbrother]

the union official will be alocal lay rep I suppose so he will need to talk to a full-time official that covers his region or job sector and then he will get more sense. He may well have a claim if the workplace uses a graded structure and especially if there is a recognised collective agreement.

You still havent given much indication about the company structure so it is hard to tell you who to go to next in the chain of authority. There should be something in the employee handbook/website about grievance procedures as it is a legal obligation to make these known to all. It may be that he has to raise a complaint with the person he wished to complain about then fail to agree to get to the next step. Putting everything in writing and demanding a written response may well be enough to settle the pay issue but I think that he will ahve to go higher to get the employment terms sorted.

[steampowered]

It is helpful that you have given us a bit of backstory, thank you.

 

As your dad has been paid for doing this job since 1993, it sounds like the additional payment probably formed part of his salary. After that period of time I imagine that this payment would be deemed to form part of his employment contract. Your dad might have had a case back in 2013 for claiming that removal of the payment without his consent was a breach of contract / unlawful deduction of wages. If your dad had asked about this in 2013, I would have said that he could object to removal of the payment and sue the employer if they proceeded to withdraw it without his consent.

 

However, it has been more than 2 years since the payment was removed. Legally, consent to a change in your employment contract can be express (i.e. signing a piece of paper) or it can be implied from the circumstances. There will be implied consent if your dad continued to work after October 2013 without raising an objection. In order to make a realistic legal claim for backpay or for continuing to receive this payment I think your dad would need to prove that he objected back in 2013, and even then it might be difficult.

 

I think your dad should only refuse to sign the undertaking if he wants to have a go at saying he is still entitled to receive the additional money. But if he has accepted that he will not be receiving the additional money in future, I don't see the problem with signing the undertaking - it sounds like the boss will pay backpay from October 2013?

 

If you want to have a go at claiming the money the best way to do that is through a grievance (although it sounds unlikely that would get accepted).

[Ethelwulf]

It is helpful that you have given us a bit of backstory, thank you.

 

As your dad has been paid for doing this job since 1993, it sounds like the additional payment probably formed part of his salary. After that period of time I imagine that this payment would be deemed to form part of his employment contract. Your dad might have had a case back in 2013 for claiming that removal of the payment without his consent was a breach of contract / unlawful deduction of wages. If your dad had asked about this in 2013, I would have said that he could object to removal of the payment and sue the employer if they proceeded to withdraw it without his consent.

 

However, it has been more than 2 years since the payment was removed. Legally, consent to a change in your employment contract can be express (i.e. signing a piece of paper) or it can be implied from the circumstances. There will be implied consent if your dad continued to work after October 2013 without raising an objection. In order to make a realistic legal claim for backpay or for continuing to receive this payment I think your dad would need to prove that he objected back in 2013, and even then it might be difficult.

 

I think your dad should only refuse to sign the undertaking if he wants to have a go at saying he is still entitled to receive the additional money. But if he has accepted that he will not be receiving the additional money in future, I don't see the problem with signing the undertaking - it sounds like the boss will pay backpay from October 2013?

 

If you want to have a go at claiming the money the best way to do that is through a grievance (although it sounds unlikely that would get accepted).

 

Hi

 

The problem deepens

My dads boss has told him that a sentence in his JD will be envoked that will make my dad do the job for no payment and I quote "To undetake any other duties that may be required that is comensurate with the level and responsibilities of the post" What a horrible man he must be.

I have seen my dads wages befor the payment was stopped and the extra was miniscule.

 

Many thanks