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Unlawful deduction of wages/underpayment of wages - Employment Tribunal or Small Claims?


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Good afternoon Everyone,

 

Hopefully someone could help/advise me with a problem I am having with my former employer. I recently resigned from a part-time job working for a well-known Housing Association as they weren't paying me in full for the hours I worked (among other dubious issues).

 

My job started 20th January 2016 and I worked exactly half of my monthly contracted hours between my start date and 31st January 2016 - over four days/shifts. I therefore expected to be paid precisely half my contracted salary (salaried, not paid hourly, unless claiming overtime, which was calculated using an hourly rate). Using the assumption that I would receive half my monthly salary, I was underpaid for January in February's pay. Then, in March, they deducted even more money and claimed that they had overpaid me for January, when I believe the opposite was the case.

 

After numerous emails and telephone calls, staff from payroll claimed that they had initially calculated my hours (15/week) over a 5 day period (3 hours/day), which is what was paid in February's wage. They then said that they had recalculated my hours over a seven day period (2.15 hours/day) hence the deduction in March's pay. However, I actually worked 2 x 7.5 hour shifts = 30 hours - contracted to work 60 hours/month – I have copies of the email from payroll outlining how they calculated January’s wage, copies of my signing-in sheets, copies of overtime sheets showing my working patterns and rotas before I left.

 

As is stands, I have been paid approximately £4.25/hour for the hours I worked in January. After two months of trying to get them to pay me correctly (and among other issues, such as lone working without backup with potentially violent clients) I resigned. Before resigning, I also raised a Formal Grievance and received no response.

 

I am going through the Early Conciliation process with ACAS, but I'm scared of the potential costs and/or risks (i.e. potentially paying their legal costs, they have a huge legal department!) involved taking it all the way to an Employment Tribunal. The Housing Association suggested that I accept two-thirds of what they owe, but I requested to be paid in full. The ACAS conciliator didn't seem too pleased that I didn't accept the offer, which worries me. Someone has also suggested that instead of taking them to a Tribunal that I could take them to Small Claims court instead.

 

I suppose my queries are these: 1) Does it sound like an ‘unlawful deduction of wages’? 2) Does it look like I have a good case for an Employment Tribunal? 3) Would it be better taking them to Small Claims to lower my risks/be more feasible than going through an Employment Tribunal?

 

Could someone be kind enough to impart their knowledge of such matters please, I would be greatly thankful. I hope I've provided enough information, if not please let me know (and apologies if I've gone on too much!).

 

Very best wishes,

 

Ammy

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Sorry to hear about that. To answer your questions:

 

1) Yes, this sounds like an unlawful deduction of wages to me.

 

2) Yes, it sounds to me like you would have a good case for court or an employment tribunal. Has the housing association provided any valid reason as to why they think a lower amount is due than the amount is asking for? If not, they should be asked to explain why they are refusing to pay this money in a 'letter before claim'. If the housing association wants you to accept less than you believe you are owed, they should provide a reason for why they think you are not owed this money, not just pluck a random settlement figure out of the air!

 

3) The risk is about the same. In both employment tribunals and small claims, the risk is very low, provided that you have a reasonable claim and that you conduct the litigation in a reasonable manner (for example by complying with deadlines set by the court, turning up to the hearing and so on). Legal costs are only awarded in a small minority of cases where one side has 'behaved unreasonably'. Unlike the situation in larger court claims, it is not normal for the losing side to need to pay legal costs.

 

The advantage of going down the small claims route is that the court fees are much lower than employment tribunal fees. For this reason I suggest that claims for unpaid wages below £10k are better brought through the courts - you only need to go through an employment tribunal if you are claiming for something like unfair dismissal or race/age/gender discrimination.

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Thank you so much for your quick response Steampowered!

 

The only written justification I've received from them for paying me approximately half of the money I was expecting was their (mis)calculation of the hours I worked. I worked 4 shifts (days) in January. First they claimed I was on a working pattern of 3 hours/day, then they claimed I worked 2.15 hours/day, when in fact I worked 7.5 hours/day - I have evidence of my shift pattern, including a time-sheet signed by my manager (I asked the manager to sign my timesheet for January before I left, but she didn't/wouldn't, but I have one for another month), rotas and signing-in sheets, which I've emailed to them as evidence several times to no avail.

 

Thank you for your suggestion to take this through Small Claims, the fees for an Employment Tribunal are really quite exclusionary for me at this time, and I probably wouldn't have taken it that far and have lost the money. I suppose all I can do now is wait until ACAS have finished their involvement and then make a Small Claims claim.

 

Many thanks again, I can stop worrying so much now :-)

 

All the best,

 

Ammy

Edited by AmmyArcher
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The stupidity of large organisations knows no limits and charitable organisations think they are beyond reproach so their replies dont surprise me.

I would use the county court small claims procedure and say that it is money owed under an agreement in the particulars of claim. If you use an ET you will have to fork out £500 up front but you will get this back when you win. You have the evidence of time worked so they ont have a leg to stand on but when you sue you should name the Trustees of the HA as the defendants rather than just naming the HA, that way the people at the top actually get to hear there is a problem in their paradise.

Your letter before action sent to the chairman of the trustees as their home address will undoubtedly do the trick, just say what you ahve siad here and exactly how much your claim is for and I bet you get asked to come in and discuss the matter. Up to you whether to accept this, i would be inclined to jsut say your position is clear and they either pay up or see you in court.

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Hi,

 

If you are on low income and/or receiving certain benefit you might be entitled to fees remission.

 

Check that out.

 

I prefer the Tribunal but please do what you feel comfortable with.

 

All the best

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steer away from the minimum wage bit, they are basically just not paying you for work done so it is X hours work at £Y.YY per hour not paid for. no need to complicate the matter

 

Hello Ericsbrother,

 

I was repeatedly told by payroll (via HR) that I didn't have an hourly rate (despite being paid a specified hourly rate when I completed an overtime sheet). That's why I'm sticking to an expectation of half my monthly salary for working precisely half my monthly contracted hours (contracted 60 hours/month for a specified salary)...I hope this doesn't complicate anything.

 

Thanks for your advice, it really is appreciated.

 

Best wishes,

 

Ammy

 

P.S. I hadn't even considered copying in the Chair, what a brilliant suggestion!

Edited by AmmyArcher
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Small claims procedure is only £35 upfront anyway but still worth applying for remission of fees based on your income.

I suspect that the payroll bod only presses buttons and doesnt read what they are imputting. Of course you get paid an hourly rate, even bosses on £200k a year can break that down to an hourly rate when it comes to court or tribunal cases as there are a limited number of hours in a year.

Any salary will be pro-rata otherwise we wouldnt be discussing this as they would have paid you about 4 times as much and wouldnt have made any deductions at all as there coulnt be a reason to do so.

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