Contract advice required

[nigrob]

Hi,

A number of years ago I was offered a change in salary that was made up of:

 1. Basic Salary

 2. An Allowance 

 

In 2014 I was subject to a TUPE transfer and now after 4 years my New Employer is wanting to remove the allowance as they say I should not be receiving it.

As I cannot remember the exact details of what the terms of the allowance are would my employer have to prove what the exact details of the allowance are before they could legally remove it and should there be a record of the terms of the allowance on my personel file?

 

The issue has come to light as new workers who have been employed to do the same job role have raised a grievance about the difference in pay as they do not get the allowance as their contract was not part of the contract terms that I accepted in around 2006.

 

Any advice appreciated.

Nic

[sangie5952]

Regrettably, provided the employer plays this correctly, it's entirely possible that the allowance could be removed. Knowing the original terms is a bit of a red herring. Whatever reason you got it is in the past. What matters is now. Now you actually do get it and have been paid it for a long time. So now you are entitled to it. 

 

TUPE is also something of a red herring at this stage. Technically the protection of your employment terms last for ever. In reality, that isn't true. For years on, and with a good business reason, they can easily justify changes to harmonise terms. The business reason is obvious - paying you this is causing disharmony. They could pay it to everyone else, of course. But that isn't likely to happen.

 

So, to remove it they must discuss it with your and try to obtain your agreement. If you don't agree then they must enforce it by serving you notice and offering your a new contract without the allowance. Then that becomes your choice. Accept the new contract, or your notice will run out and you have no job.

 

It is possible to then claim unfair dismissal. The reality of that is far from attractive. First off, obviously, you have lost your job. You can quite possibly lose- and whilst there isn't enough information here to be relatively certain, I'd suggest that you would probably lose. It's not likely to garner much support that you are willing to throw away your employment and the whole income over an allowance. 

 

Unfortunately, it's that simple. If they want to remove it, they will. And your options are not ones I'd recommend trying out. Your only real opportunity, if you can call it that, is to refuse, submit grievances, and play for time. But all that will achieve is to likely annoy the employer. So it depends whether that bothers you. And it will only get you time, it won't stop them changing terms if that is what they are determined to do. 

[nigrob]

Hi,

thanks for the reply.

So to be sure I have it correct:

 

1. I am entitled to it due to length of time it has been paid.

 

2. I must agree to it being removed.

 

3. They can force the change.

 

4. Because the employer has employed people on different terms with lesser pay the experienced long serving employee is treat unfairly and loses pay.

 

Can I also clarify that though I am not willing to sacrifice my employment because of this but neither do I agree that lowering my wage is a fair outcome for me     that I believe has been brought about by employing people on lesser pay scales than the job that was already covered by agreement of T & C’s. 

Surely the T & C’s to new employees should have been honoured to the new employees.

 

Nic

[Emmzzi]

what was the allowance *for*, and are you still doing the thing it is for?

[nigrob]

The allowance incorporated various aspects including experience , knowledge ,   adaptability but the exact detail is not known, I am still employed under the same title but poor health has meant that my duties had to change.

 

Nic

[Emmzzi]

20 minutes ago, nicurro said:

The allowance incorporated various aspects including experience , knowledge ,   adaptability but the exact detail is not known, I am still employed under the same title but poor health has meant that my duties had to change.

 

Nic

 

Sadly that is not going to help you much. It would be much easier if it was something like a night shift allowance. If you don't have detailed documentation of it, I am afraid that is going to be difficult to defend.

[sangie5952]

Unfortunately, the law doesn't much care about your opinion on matters. "Fair" in the world view is not the measure the law uses. What they are suggesting, provided that either you agree, or that they enforce it correctly, is lawful. And the employer knows that your aren't likely to be willing to bet your job on a game of chicken. The reason why this was paid originally is really a red herring. The fact that you have the same job as others but more pay is the only matter in this discussion. Legally, that's also "fair" - there's nothing in law that says they must pay you all  same amount. Legally, every single one of you could have a different wage. But realistically, the employer is effectively saying that they aren't prepared to about everyone else by having different wages, and they aren't prepared to give everyone else a pay rise, so their simplest answer is to remove it from the one person who has it. 

 

Of course, the moral to this tale is that this is what loyalty is worth in the employers book. You might want to think about that. There are always better jobs out there if you  have a reason to look.

[king12345]

I'm not going to give my 2 pennies considering that with employment matters i always end up being attacked.

However,  my strong advice is NOT to trust people on an online forum for choices about your life.

If you have home insurance you could have legal cover included, so explore that avenue and get proper advice.

Or if you are in a union, speak to them; they should be pushing for everyone to get the allowance!

Finally, research online "working custom and practice" as well as the related "implied terms of employment contract".

Do not let anyone tell you that the employer is always right because most times they aren't, they're just good politicians playing cards with humans which they consider inferior.

[nigrob]

Hi King,

 

Thanks for that .

 

my other concern is if they have decided that the payment had been given bu mistake for  4 years since the TUPE could the employee insist on me repaying this money?

 

I am going to decide on legal advice after the initial meeting that they are arranging when I know what they are planning to do for certain.

 

nic

[king12345]

Repaying the money???

Not on this planet, unless you ask someone protecting employers for a living.

They won't have a chance in a billion even if the payment had been a real mistake after 4 years.

[Emmzzi]

you could pop in a SAR and see if they have a personnel file with details of the allowance? Long shot...

Edited April 3, 2019 by Emmzzi

[nigrob]

Do I not already have a right to view my personel file without the need for a SAR?

 

[Emmzzi]

Have you asked for a copy of the documentation about your allowance? What did they say?

 

I'm just telling you how I would do it. You do it any way you think will work better!

Edited April 3, 2019 by Emmzzi

[sangie5952]

There is no possibility of repayment being supported by the courts. But not, as one poster suggests, because it is impossible to recoup mistaken payments after four years. That is simply not true. "Debts" of any kind, including overpayments can be recouped in court for six years (in England and Wales) - and are. That's the law. Regrettably, some people who advise on these boards don't really rate the law as counting, but unless you happen to live on another planet, you must. Anyone who has a strong union presence in a workplace, who can beat employers at their own game, doesn't post here! And the revolution is still a long way off. 

 

The reason you don't owe any money back is because it wasn't a mistake. You were paid this amount by the previous employer, and that term TUPE'd with you. No mistake. Removing the allowance, even back then, might have been possible (TUPE doesn't provide half the protections some think it does) but to have done so required the employer to do what I have already described - change the terms either by agreement or by lawful enforcement. It couldn't have happened "in secret".

 

If the allowance is to be removed, it must be done by consulting (which they are doing - that is what the meeting is for) and, if you did not then agree, by enforcement. As I explained, that would require them to serve you notice and then offer you the new contractual terms to run from the date of the expiry of notice. There isn't any other way. That has  a paper trail. 

 

None of that means that the employer will or must do any of that. They can lawfully pay you differently from other people. If they don't wish to do that, that is a choice that they are making. You can make any choices that you wish as well. You can accept it. You can work under protest and file a tribunal claim over the terms change (if you are tough enough to sue  your employer whilst still working for them). You can let them dismiss you and claim unfair dismissal. You can find another job. 

 

I'm telling you what the law says you, and your employer, are allowed to do. Not what you want to do or what you must do. That way you can make an informed choice. That is not, as some posters think, siding with employers. Broadly speaking, the law sides with employers. That's a fact. Anyone who doesn't like the fact, well that's tough luck. I don't write the laws. If I did they'd be very different. But living in a could cuckoo land that consists of ignoring everyday realities is not going to protect your allowance or your job. You know what can be done. What you decide to do about it is down to you, not anybody here. 

[king12345]

As predicted.

See a real independent legal advisor specialised in employment law.

[ericsbrother]

how much is the allowance and has that sum changed over the years? it would have been simple for your employer to incorporate it into your pay and then not give you an increase until that sum had been absorbed and you were paid the same as everyone else doing the same job

 

That particular path is still possible so worth trying to negotiate so you dont suffer a drop in pay but just dont get a pay rise next time..

 

Aso how did your colleagues find out about this allowance? Is pay determined by an evaluated structure or does everyone get the sameby roughly lumping people together and saying you are all cleaners or all mechanics and this is what we pay that role regardless of differences in experience, responsibilities and so forth

[nigrob]

Hi Ericsbrother,

 

I thank you for the suggested negotiation to prevent my wage dropping and will explore this at the right time.

 

The department was initial made up if workers on the same pay and we all had pretty much similar skills, experience etc.

 

As the business changed and the staff moved off of the department they decided to pay new workers a lower wage due to a difference in skills and the lower wages that the new company generally paid.

I also understand that they intended to keep the newer workers on a lower wage until they had proved themselves capable but this changed when the new workers complained about the pay difference. I am unsure if the newer workers now receive equal salary to myself without the alowance or if they are still on a lower wage.

 

I am unsure about how other workers found out about the alowance.

 

Nic

[sangie5952]

I had wondered about that myself - if only one person had this allowance or knows about it, how could they know to complain? 

 

However, it's a good idea to see if there could be some form of tapering off against future increases - although that assumes regular pay increases, which is not common to all employers. 

 

But don't get distracted by overly explaining to the employer. It might, originally, have been a "retention bonus" for the most experienced staff in order to retain them. But it now appears, from the employers point of view, to be having the opposite effect! They have a number (a larger number than one) of "newer" employees - and by newer it no longer appears to be defined as less experienced or valuable to the employer - who are demotivated and angry about the fact that they get paid less than another person for doing the same job. The employers focus appears to be on pacifying them without it costing the employer more. So retaining them is now the issue, not retaining you. Quite possibly because they don't believe you can or will walk if they take your allowance away. To justify the allowance, you either have to convince them that there is a reason that you are more valuable than other employees (which is, according to you, the only reason you get it) or that there is a good reason to extend the allowance to some other employees on the same basis (and that needs to be a reason that the employer sees benefits them, not about what benefits you). 

 

Alternatively, you can sit on " I have TUPE protections and you can't change my terms". For the reasons I've already explained, that has next to no hope of being  upheld legally at this point in time, so you'd be being on the employer not knowing that or not finding that out  - we don't know how likely that is, but unless it's a small employer, that's not very likely. Possibly worth a punt, but not a potential goer in reality. 

 

There's one other possible strategy, but again, this is the sort of thing that I wouldn't hold out a lot of hope for - and it would probably work only temporarily and works best when you have a union presence that can intimidate the employer.... That's righteous indignation and fury about "who had breached data protection and privacy" by disclosing this information. It's a distraction rather than an argument - not all employers will fall for it or care. But some might get tangled up by demands for investigations into who has disclosed this. I do doubt it would have much impact though. 

[Ethel Street]

14 minutes ago, sangie5952 said:

 

 

There's one other possible strategy, but again, this is the sort of thing that I wouldn't hold out a lot of hope for - and it would probably work only temporarily and works best when you have a union presence that can intimidate the employer.... That's righteous indignation and fury about "who had breached data protection and privacy" by disclosing this information. It's a distraction rather than an argument - not all employers will fall for it or care. But some might get tangled up by demands for investigations into who has disclosed this. I do doubt it would have much impact though. 

 

It would probably turn out anyway that the information on pay rates came from another employee discussing their own pay rather than from the employer so no privacy/data breach under the Data Protection Act would have occurred.

 

"Do I not already have a right to view my personel file without the need for a SAR? "  No.

Edited April 5, 2019 by Ethel Street

[sangie5952]

Yes Ethel, I agree. It was more by way of muddying the waters than by any expectation it'd work! 

[nigrob]

Hi again,

 

Thanks for all of the responses so far,

The first meeting is still to happen and I would like to ask for advice on the following 2 questions as I feel that one of these will be asked at the start.

 

1. Employer says that they have been paying me an allowance by mistake and are going to stop paying it immediately.

 

2. Tell me what you know about the allowance you are being paid?

 

With the first question in mind do I ask why have they been paying it if it shouldn’t be paid for this length of time or do I ask them to prove that it is a mistake?

 

Then with the second question if they know it is a mistake would they be trying to catch me out which would then break the trust that has been built over many years by me trying to justify something that was a mistake.

For all I know they are paying an allowance  that they have already told another worker they should jot be paying.

 

Am I also allowed to choose a representative to accompany me to the initial meeting as my employer has not said that I need one and I was thinking of using a Solicitor , this dependant on what the employer has decided to do.

 

Nic

[Emmzzi]

My advice is still to get a copy of your file.

 

You have nothing saying what the allowance is for, in writing

 

You don't know if they do

 

Without that info you're going to be a bad bluffer at the poker table; and there's no point at all paying for a solicitor until you have some facts for them to work with.

[sangie5952]

You have no right to take anyone with you. This is neither a grievance nor a disciplinary - which are the only circumstances in which you have that right, and even then, it is only a trade union official certified for that reason or a colleague. 

 

I do feel that you are overthinking this. Where are these "feelings" coming from, because what you think the employer will ask appears to be a rather convoluted approach by them to something that is actually easy. Is there something else going on here that you aren't telling us? 

 

It is not up to you to go into a meeting and explain or prove anything. If you have paperwork relating to the original agreement that would be useful, but all that does is prove that you did have the allowance agreed at some time in the past. It doesn't prevent them withdrawing the allowance, and only dictates how they can do so. 

 

Your position is that your previous employer paid that allowance. That was a term that TUPEd over with you. Full stop. There can't be a mistake unless it was a mistake by the previous employer and at this stage they cannot prove that even if it were true. You do not agree to the allowance, to which you are entitled, being withdrawn. You don't say or explain anything else.

 

It is then down to the employer to decide what they are going to do. They can, as I have explained, lawfully enforce a change of terms, or they can drop the issue. If they did the former, they must follow the process that I've explained to you already. Anything else can be ascribed as an unlawful deduction of wages. 

 

It isn't up to you to prove anything. Your wages have been paid with this allowance for xx years, by the previous employer and this one. They would have to prove that there was a mistake, and they would need evidence of that. How, exactly, do you think they will provide it? Even with the law stacked against employees, an employer can't simply say "we made a mistake in your salary, give us some back"! They need proof a mistake was made.

 

I'll ask this again though. Is there something else going on here that we don't know about? Advice is only as good as the information it's based on. And you do seem to to have a recurrent "feeling" that they are going to ask about or argue specific points. 

Edited April 9, 2019 by sangie5952

[nigrob]

The feeling of what will be asked are due to one of the newer members being told that they should not be paid it and it was withdrawn from them.

An under manager has already questioned me about what the allowance was for when he got wind of the issue being raised with the same member though he did say that there were no plans to remove it from me at that stage.

 

nic

 

[ericsbrother]

withdrawn after how long of being paid it  or not paid it at all? there is a big difference so please be careful with your words if you mean somehting and the use language that suggest somehting else