Employer claiming you didn’t work required number of shifts 4 years ago

[Olihar]

Ok sorry as this is going to be a bit long winded.

 

New manager started in 2019 and has looked at rotas going back to 2016 and states that I haven’t worked the required number of shifts for the previous 3 years.

She is also querying the time taken for training and off rota hours.

 

The rota is complicated to explain and has worked the same ever since I started 17 years ago. 

It was always managed by the team manager however this post was made redundant, and team members then managed the rota with a senior manager overseeing the team, until they decided to reinstate the manager post.

 

4 years ago I had a dispute with my employer due to changes in terms and conditions which went through legal channels until settlement was reached in my favour.

 

At end of 2019 a new senior manager decided that she wanted to change certain parts of my contract

( this only effected 2 members of the team - me and another member who are paid differently to rest of team due to our contracts).

 

We were told that if we didn’t agree that we would be dismissed and re engaged on new contracts.

This will have a financial impact.

We didn’t agree and duly were given notice.

 

As I’m 57 and am eligible for early retirement I decided that I didn’t want to be re engaged.

This is due to some extent with family and health issues

( been diagnosed with skin cancer, and have had a relapse of depression and anxiety).

 

I therefore wrote to the senior manager in reply to her letter stating that I didn’t want to be re engaged and would be seeking early retirement which she accepted.

( Work are not aware of my health issues ).

I have 5 weeks left of my notice period.

 

Today I’ve received an email from my manager relating again to the shifts that she states I have underworked,

wanting to have a discussion with me so that I can formally respond so that they can consider what, if any further action is necessary.

 

I have previously said that if there was an issue then I would have expected management at the time to have raised it and dealt with it.

I was not contracted, paid or trained to run the rota. 

 

This whole situation is making me very stressed- my GP already wants to sign me off work.

I just want to work my notice and leave and also don’t want to leave my co workers in the lurch if I go off sick. 

My job is highly stressful enough as it is.

 

Can they go back years?

Can they stop me taking my pension?

 

 I should say that I’m a key worker and having to go into situations that place me at risk which doesn’t help the stress.

Any advice please 

[fkofilee]

Emmzzi will likely offer some very helpful advice for you  They are very good

Personally if I was 5 weeks away from Early Retirement - I would be telling them to Foxtrot Oscar in a variety of ways.

 

But that is my opinion and is not advisable to do in any circumstance. 

[BazzaS]

Did they agree early retirement (since you also said they were planning to dismiss you for not accepting the change in Rota / T’s and C’s), or make you redundant, or dismiss you?

 

Seems odd if they agreed early retirement above dismissal unless they knew it wasn’t an option that would go unchallenged! How long was the notice / what date does it / has it expire(d)?

 

Are you in a union? (Unite, or another?)

 

If your GP is willing to sign you off for the 5 weeks (or time remaining), then consider it, regardless of impact on others. It is good you are considering them, but you have to consider your own health / well-being, too.

Edited May 13, 2020 by BazzaS

[ericsbrother]

If you had called their bluff they would be risking a drubbing at an ET as they cnat dismiss you and reegane on a new contract, it is dismissal OR a new contract and the dismissal would be the problematic bit. If the new contract offers different work and not just a change of hours then redundancy is the way forward to avoid an ET.

so can they investiagte somehting that went wrong 3 years ago? well, yes and no. They can insist on you doing the required work in this year but basically they have mitigated their own complaint out of existence by not doing anything about it before so they will be onto a loser as they have accepted the  changed terms of service themselves

Your previous problem may well also give them another headache if it is any way related to the current problems.

I suspect that they are trying to change your terms now to reduce their liability for your pension  and that will again cause them problems if you dig in.

My advice would have been call their bluff at the time of the first threat and drag out the terms of the last settlement agreement and shove it in their faces but you hae amde that choice obsolete.

so what to do? look carefully at your pension scheme terms and see whetehr there is any detriment to your pension as a result of their actions and if there isnt tell them to get lost. If ther is I wouild be contacting the PAS to see what they say. you might have a couple of years litigation over all of this but they will suffer the most and undoubtedly know it

 

[Manxman in exile]

You are a Key Worker.  Do you happen to be a public sector employee?  eg NHS or local authority?

[Olihar]

 I work for a local authority.

[BankFodder]

I suppose you need someone with direct employment experience on this – but here are a few basic questions which I don't think have been asked.

Is it correct that the shifts were underworked?
Were you aware of this?
Who designed the shifts?
Where you simply complying with the shift pattern as they were presented to you?

Also, if it is correct that the shifts were underworked – have you calculated what financial impact if any this might have on you – financial loss?

Are they saying that you have worked less than the required contracted hours that have been paid your contractual remuneration?

Have they come up with a figure in terms of money to represent the amount of time they say that you have underworked?

[Olihar]

From the figures they’ve given to me it would appear that there are underworked shifts, although I wasn’t aware of this at the time. Shifts are swopped , covered by working extra shifts if staff shortages, and hours are also worked for training, attending meetings etc. 

Yes they’re saying that I haven’t worked what I’ve been contractually paid for. 

This has been ongoing for 8 months and doesn’t seem to be moving anywhere fast.

ive worked out the cost is around £7k. 

 

[BankFodder]

But do you agree with the figures? All are you disputing that part of the problem?

When you say that shifts are swapped – are you referring to individual arrangements between individual workers – or is this something that you have been asked by management to do?

If it is correct that the ships were underworked – then were they simply not worked? Or did somebody else work more than their share?

As the correspondence about this or is it all been done verbally so far?

How do you think this is likely to affect your retirement?

[Olihar]

Individual workers swop shifts continuously.

so shifts were covered by paying someone to do an extra shift

all verbal meetings with no minutes - I’ve asked for them and been told it’s all informal chats

im not disputing what they’re saying re underworked shifts now it’s been brought to my attention and I’ve looked at their figures. 

I just want it sorted , however do believe that it should have been addressed by management at the time who had a responsibility for the rota

can they stop me receiving my pension if they believe I owe them shifts/ money?

[BankFodder]

I can't imagine at all that they have the right to prevent you taking your pension. That will be extraordinary and if there is any suggestion of that then you should let us know immediately. Also if you work for a local authority then presumably you are a member of a union. Have you spoken with them?

It may be all "informal chats" – but you should be making detailed notes of every meeting or chat immediately after it has happened and store the notes off the premises.

You say that you are entitled to early retirement. Are you intending to do that? If so when?

The real question for me is that if they decide that you owe them a certain amount of money then how do they propose to recover it from you. If they are still paying you then I suppose they could now set about making regular deductions from your salary. Once you retire then I think that in order to recover any money they would have to sue you.

If they did that then we can help you. Is there anyone else who might be in your position as possibly having underworked their shifts over a period of years?

Is it reasonable that you didn't know or appreciate that may be you weren't working your full quota of shifts?

When you say that you swap shifts by paying somebody to do your shift for you, that sounds to me not like an exchange of shifts but actually that you are doing your shift but instead paying somebody else to do it – so the shift was done and the employer is not out of pocket. Have I got that wrong?

[honeybee13]

Hi.

 

I've asked someone who knows about pension schemes about this.

 

Have you filled in paperwork for early retirement? If you have, it will have gone to the scheme adminstrator who is separate from your employer. You should know who the administrator is from the paperwork you filled in or from your pension scheme literature.

 

Ring the administrator if you have concerns and ask them what's happening.

 

HB

[Manxman in exile]

OK - You work for a Local Authority.  Are you in a union?  If yes, ask their advice.  If your situation is too complex for local reps, insist on speaking to someone from their regional office.  (I'm a former NHS manager and found myself in a really difficult employment position.  My local reps were out of their depth, but one of the regional officers really knew their stuff and sorted it out for me).

 

Each Local Authority administers its own pension scheme (unlike, for instance, the NHS).  You need to find out how to contact the people* who administer the scheme (ask your union, or ask colleagues or ask your payroll department - you should also be receiving an annual pension report which should contain contact details) and explain to them what has happened and ask how it may affect your pension.  I'd speak to them on the 'phone initially as I always find that easier as a first point of contact**.

 

You do need to get this sorted as it may impact your pension.

 

*Public sector pension schemes are quite specialised.  The people who manage your scheme will almost certainly be much more knowledgeable about how it works than anybody who is not involved daily.

 

**Make sure you ask for any advice you are given to be put in writing.  (Bankfodder will also tell you to record it, but you may not be able to do that).  The only thing I'd warn you about is that if your LA scheme is anything like the NHS pension scheme, then you really do need to understand how the rules work.  It can be a real minefield - I've known people be wrongly advised about their NHS pension with little comeback.  You need to get it right first time and avoid disputes post-retirement.  Support from your union would be really helpful at this time.

 

As I think honeybee has asked, you've had pension quotes from your scheme?

[Olihar]

No Union as 4 years ago they were next to useless and didn’t fight our corner and had to go down the legal route to get it sorted.

I keep notes about everything said

Theyve agreed early retirement and I’ve got 4 weeks left at work 

I didn’t know I hadn’t worked the required shifts as I had been given extra work to undertake during the day and these hours counted towards my hours worked. ( My usual shifts are evenings/ weekends)

Workers swop shifts with each other but if there’s a shift not covered then a worker is paid to cover an extra shift

[BankFodder]

Well in the absence of any other input, I think you should hang fire – see your four weeks out and see what happens.

I'm sure they can't stop your pension. At a completely different matter and the only thing once you've left work that they could do would be to come after you with a court action – and we can give you some help.

If they start deducting your last week salary and then that is a different matter and we will have to look at it – but as you say that nothing has been put down formally, I can't see how they going to get them together in four weeks – and anyway according to your calculations, there may be an overpayment of £7000 and you will know better than us whether you earn that in four weeks.

[honeybee13]

Please consider speaking to the scheme administrators though. I believe the local government pension scheme is regionalised.

 

Do you have paperwork that tells you who the admins are? If not, it you're prepared to tell us which council it is, we can check. My contact talked about a council in the south east that uses Liberata, for example.

 

HB

[Manxman in exile]

1 hour ago, Olihar said:

...

Theyve agreed early retirement and I’ve got 4 weeks left at work 

...

 

But you've had a quote from your pension scheme as to how much you'll actually get?  (I'm presuming if you go early there's a reduction to take account of the fact it'll be payable for longer).

 

[EDIT:  Sorry - you also talk about changes of contract and changes in T&Cs being imposed which is a bit unusual in a LA.  Have you been subject to some sort of TUPE transfer at some stage?  You are employed by a local authority and not by a third party providing services to a LA?]

Edited May 16, 2020 by Manxman in exile

[Manxman in exile]

Apologies for belabouring this point - you say your manager has agreed to you retiring early, but your employer has formally agreed too?  Yes?  (Sorry if that seems patronising but I've seen some unbelievable misunderstandings in my time!)

[Olihar]

No TUPE transfer, just management wanting to change things - every new manager that comes in wants to ‘ sort our team out’, and they all eventually leave after not achieving their aim. There are only 2 workers left from the original team of 7 And our contracts are different to the new people in terms of pay and conditions ( a whole different other issue). 

Im In contact with my pension provider , just waiting to finalise it.

 

Yes they’ve agreed early retirement- they dismissed me off my contract as I wouldn’t agree to the change in terms/ conditions, and I decided that I did not want to be re engaged so said I would take early retirement. This is in writing

[BazzaS]

Being dismissed and taking early retirement are mutually exclusive ..... once you are dismissed you aren’t employed.

 

Did they dismiss you? Give you notice (rather than dismiss you)?

 

If they dismissed you “off your contract”: did they re-employ you on a different contract?

Edited May 16, 2020 by BazzaS

[Olihar]

I was dismissed off my contract with automatic re engagement on a new contract . I chose not to accept re engagement and put in for early retirement 

[BazzaS]

If you were dismissed and declined a new contract : you aren’t employed (once any notice period is served)

 

Were you dismissed, or given notice?

The saving grace will be IF you were given notice (rather than summarily dismissed) AND are able to take early retirement BEFORE that notice expires.

 

I think you need to be clear on EXACTLY what happened, and what precisely has been agreed.

[Olihar]

I was given notice as per my contract and notified them in writing that I would take early retirement rather than be re engaged, so my finish date is the same and I remain employed until that date

[Manxman in exile]

I feel like I am belabouring this - your early retirement is done and dusted, a fait accompli, and not contingent on any further agreement from your employer?  I'm a bit surprised, like Bazza I think is, that your employer has agreed to early retirement in these circumstances.

 

Early retirement is costly for the employer and they usually have to be given a "good reason" to let anyone go early.  (Unless they want to get rid of you and it's the cheapest way of doing it.  Maybe they see you as a problem...).

 

I'm not saying it doesn't happen, but I've never known of anyone being allowed to take early retirement while they're on notice.

 

Also the different contractual arrangements all sound a bit odd for a LA if there's not been some previous transfer of staff.

 

(You say your not in a union because they ddin't help you before, but are you on good terms with a union rep who you can discuss this informally with

[honeybee13]

It could be medical early retirement, we don't know.

 

I'm labouring the point too but I still think it's worth speaking to the independent scheme administrator if the OP wants things confirmed.

 

HB