Contract advice required

[nigrob]

It had been paid to them for a period of time then withdrawn. 

No idea how long it was paid for though.

[sangie5952]

Ah. Now it's becoming clearer how this has become an issue. If someone was paid it and then hag it taken away, then the issue arose out of that. So other people did know the allowance existed, and that explains how everyone found out about it. 

 

But that doesn't change anything. They can, if they want to, withdraw the allowance if they follow the correct procedure. Your only position is that it is a term, and a TUPE'd term - no cause to explain anything at all. 

[nigrob]

Hi,

just another thought I have had is that if my employer says that it was a mistake to pay me this allowance would it mean that it is not part of my contacted terms & conditions?

 

nic

 

 

[sangie5952]

No. The fact that it was paid for so long AND predates this employer would make that a difficult argument to sustain. Which is why all you need to do is stick to the simple " it was part of my terms and conditions with the previous  employer and TUPE'd with me". You are over thinking this, and that is going to get your mouth into trouble- you will end up saying something you shouldn't. It is not your job to work out what the employer might say or what you might say in response. You stick to the fact that this is a term historically agreed by the previous employer and forms part of your TUPEd terms. Say nothing else. Answer nothing else. Explain nothing else. It's for the employer to play this, not you. 

[nigrob]

Hi Sangie,

 

Thanks for the reply but you may have misunderstood me.

I meant that the allowance the new employer is paying could be a completely different allowance payment to the original one and therefore a mistake.

 

Nic

 

 

[sangie5952]

So what you are saying is that you have no idea what you have ever been paid, and no idea what you are currently paid?  Do you never check your wages? When you TUPEd you didn't bother to check whether your new employer was actually paying you correctly? Sigh. 

 

Look. You are over thinking this. You remind me of someone I represented in the distant mists of time who couldn't be trusted to say anything, so I made her recite "i'm trying to help you but I have no recollection of that" for weeks - because she also kept over thinking it and trying to answer things that hadn't been asked or weren't relevant.

 

It doesn't matter what THEY say. YOU just keep with the mantra that this was the term before you transferred, it transferred with you, it's a term of your employment, you aren't agreeing to give it up. NOTHING ELSE! Please, just stop "thinking". Let them make the running. You need prove nothing. 

 

Then if they pursue this, come back and tell us what they actually say, or what they actually intend to do. 

 

Got it?

[ericsbrother]

lets face it, they arent doing anything yet so all you ahve to do is keep rereading Sangie's post #29

[nigrob]

Hi Sangie5952,

 

is it possible for me to DM you after todays meeting?

[honeybee13]

We don't encourage advice by PM and I think Sangie is aware of this. Private advice can lead to problems for Sangie or yourself, which is why we ask for things to be discussed on thread.

 

HB

[sangie5952]

I don't ever give advice off the boards, regardless of site policy. They're really isn't any reason not to post on the site. I'm more than happy to spend as much time as it requires on the site. 

[nigrob]

At the meeting today I was informed that the investigation had been concluded and that the allowance would be removed as they were certain that I was not entitled to it.

Later on I was then asked back to the meeting room after about 5 hours had passed and then was told that due to a number of valid points had been raised they would not be removing the allowance yet as they needed to investigate more to get it right.

I am now unsure if this is an acceptable process and would appreciate any advice.

[sangie5952]

It isn't "invalid". Which isn't exactly the same thing.

 

You did what I told you - stated firmly it was a term and refused to accept any change?

 

In which case, I think you now formally write to them (keeping copies) saying this. So a confirmation that you had a meeting with them, what was said at that meeting, and reiterating that you have a TUPEd term which you are refusing to change. 

 

The ball is then in their court to decide next steps. If they follow the correct process they can remove it. But we have to wait and see better they will.

[ericsbrother]

you must assert your position now. use what you have already been given and see what they want to do.

If it is only you in this position then they may well want to do nothing at all. Try and avoid discussing this with your colleagues  and even your manager. If they need to know they will be told from on high

[sangie5952]

2 hours ago, ericsbrother said:

you must assert your position now. use what you have already been given and see what they want to do.

If it is only you in this position then they may well want to do nothing at all. Try and avoid discussing this with your colleagues  and even your manager. If they need to know they will be told from on high

Yes, the don't talk about this to anyone is very good advice. What other employees don't k now hurts neither them nor you. If they think you don't get paid more than them, then going through the motions of that may be enough. Your problem is that you'd need to be a very valuable employee for the employer to be willing to stand up for your pay against a bigger number of employees than just you. But they obviously didn't care a lot either - until everyone else kicked off. So stay mum and see what happens next.

[nigrob]

As the original investigation has been concluded and the first decision to remove the allowance has been reversed should I request any documents relating to the investigation ?

In the original decision the employer stated that they would not be looking to recover the monies that they said had been paid in error, can this be reversed in a subsequent investigation that they say will be carried out?

The employer also said that they would confirm the decision in writing at the first meeting which I am still waiting for but should they also confirm the reversal of the original decision in writing?

Also, if there is no documentation available to the employer stating what the allowance was for exactly , ie it has been lost, is it acceptable for them to contact previous HR managers that have left the business without my consent as they said that they had been in touch with them?

 

thanks again for any assistance,

 

Nic

[sangie5952]

I think "over-thinking" is your middle name!

 

There is nothing to "investigate" - that is a vast over dramatisation. By this definition, employers "investigate" absolutely everything all the time. You have done nothing wrong, nor are you accused of doing anything wrong - the employer is simply looking at the circumstances in which you came to be paid this allowance. They are continuing to look into it, almost certainly (assuming you did what I told you to do) because they had made a decision to remove the allowance and hadn't calculated on your knowing that they could not "just" change a TUPE'd term that easily. 

 

On technical grounds, yes, of course they can change their minds. You want them to change their minds about the allowance, so it would be perverse to expect that they can only change their minds if the change suits you! However, and I am really not going to go into this is detail again, they could not sustain a legal argument that this is a mistake or that they can reclaim the allowance. Read the whole thread again - the reasons why they could not sustain such an argument has been dealt with in great detail.

 

There are no "should's" about them putting anything about this in writing. The law doesn't get into details of that sort. When and if they decide to remove the allowance, they must put that in writing, and at that point we can review exactly what they say and what they say they will be doing to remove it. Until then, you sit tight because this is all just so much fluff. Stop fretting about small potatoes. 

 

They can contact anyone they like without your permission, because your permission isn't required. 

 

Have you written the letter that I suggested you write in post #37?

[nigrob]

I have written my request for personnel records and the letter mentioned in post#37 and will be handing to employer on Monday.

 

[nigrob]

Hi,

 

I have sent my employer a SAR relating to my personnel file and I would like to know how the information given to me is complete.

 

Should  I receive a confirmation letter from the employer stating that what I receive is the only available documentation within my file and should there also be an itemised list of all documents received.

 

Thanks 

 

Nic

[ericsbrother]

this is the hard bit, there are lawful reasons for witholding certain documents but unless you know what they hold on you it wont be easy to know if something has been witheld.

It is usual for someone providing the data to give a list fo what type of data it is and where it is kept, ie personnel files and internal emails may well not come from the same source so if you get no emails revealed that indicates that soemone has either not asked for them to be searched for or they have been witheld and you can then ask if there is a reason for this.

 

[nigrob]

So when I receive the documents that are from my Personnel file there should be a list of all documents provided?

 

The accuracy of the response from my employer is key to possible legal action that may follow and I just wondered how I would prove that the SAR was not complied with if during the legal action they present a document that should have been released to me with the SAR.

[nigrob]

Hi, 

 

The employer had another meeting with me today and they have decided that they are removing the allowance from me as I do not perform call out due to my disability and they are seeking a report from occupational health to support this decision.

I now feel attacked personally by my employer as the reason to remove call out has been changed to suit the decision.

In the first part of the meeting they stated that after checking with persons who set up the allowance they have decided i am not entitled to it and then went onto tue part about my capability to perform duties required under a call out scenario.

I also know that before TUPE I was paid a shift allowance which should have transferred across under TUPE but no payment was ever received.

During the first 2 years after TUPE the HR team leader told my manger on numerous occasions that they had to remove my shift allowance as I had moved to a daytime role and I should not be getting it but my manager explained that while I am doing the role he did not want the shift payment removed.

How could they remove the shift payment if I was not receiving it ?

 

I am now wanting to send a letter to the employer about this mornings meeting and would like advice about the content of the letter.

 

thanks

 

Nic

 

[sangie5952]

I would advise that it says nothing more than you refuse to accept that the allowance is removed. Stop taking it personally - the only reason it's personal is because your are the only person getting it! That isn't "personal". Taking things personally is the route to making an error. 

 

I am totally confused by your statements here. The allowance should have transferred under TUPE but you weren't paid it. So what are they removing? You now are saying that the payment is a shift allowance, but you weren't now working the shift that the allowance was for? You said previously that you do the same job as others who don't get the allowance - are toy now saying that you actually don't did the same job because they do call outs and you don't?

 

You really need to clarify what your are saying to us as this information seems to be at variance to what you said previously. It was always the case that, if done correctly, they could change the terms of your employment (which is why you don't start helping them out by sending lengthy letters - you do not accept the change is all you say), but what your are saying here would only seem to strengthen their argument that you shouldn't now be receiving the allowance. 

[sangie5952]

If this relates to your other thread, it is somewhat premature to be talking about legal action... But even so, it is entirely possible for an employer to argue that the document was overlooked or "misplaced". However, I think this is a distraction. You  are constructing possible scenarios for an action that hasn't happened and a "case" that doesn't exist. Therein lies the path to madness - there are a million and counting "possible" scenarios - and the simplest one will just be to change your terms and conditions. Wait and let them act. Then start looking at strategies.

[nigrob]

Hi Sangie,

 

When TUPE happened I received shift allowance from the outgoing employer.

When I received my first payslip it contained Responsibility allowance and no shift allowance.

When I asked my Manager and also HR about the Responsibility Payment and the missing shift payment I was told not to worry about it and it must be correct.

 

i feel it is personal to me now as in all 3 workers received the responsibility allowance from new employer and after todays meeting I will be the only one who it is removed from due to my capability surrounding my disability.

 

It was also mentioned in the meeting that they had made reasonable adjustment to my role to enable me to continue my employment even though they have never changed my Job Description to reflect this.

Now that I have received their final response I can now tell you more about the circumstances as I am never sure who is reading these posts hence the earlier request to DM you.

 

I also believe that I am still covered under a collective bargaining agreement by the Union so maybe I need to contact them also.

 

Any advice greatly received 

 

Nic

[sangie5952]

You are in a union and you haven't yet contacted them????

 

If you are in a union then the FIRST place you go is  the union - not an anonymous website! 

 

I'm sorry, but your are now disclosing lots of information that is very pertinent, some of which may help you (through your union) and some of which may not. This is a job for your union. Theoretically, the employer technically has a case they can argue.  As I've explained previously, changing terms and conditions is not hard, but must be done correctly. But now we have complications with the fact that you are not doing the job that others do, so your claim to the same payment is in question. This really needs feet on the ground to sort out. Speak to your union.