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Employer Penalising By Deducting Pay For Work Done And Holiday Pay

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situation as follows

 

1.) changes to production by manger to inferior equipment / methods / raw materials

2.) a particularly awkward customer

 

the employee hounded and harassed for months was blamed for events over which the employee had little or no control but still resulted in a written warning

as there could be no improvement, after a short period (6 weeks) in which there was progressively more and  more harassment a second written warning was issued

 

the employee now thoroughly upset annoyed and angry at unjustifiable treatment, tears up the disciplinary notice, walks out, returns the next morning and hands in resignation effective immediately.

 

the employment contract has a clause as follows

 

"if you leave your employment without giving the correct amount of notice ,unless it has been agreed with the employer that you may do so,

  an amount equivalent to your salary for the unworked period of your notice will be deducted from your final salary"

 

pay slip shows

 

94.5 hours worked, 1.5 hour o/t + 61.2 hours holiday pay , totalling to an gross amount of £1290.62

 

total payments £1290.62  - gross, for work done and including £502.45 accrued holiday pay, which is wrong as this should include an additional two days in lieu of worked bank holidays .

deductions of     £ 169.81 -  for ni , tax, pension etc

deductions of     £1116.56 - for unworked notice

 

net pay £4.25

 

firstly is this legal and why ,

 

to me this appears to be purely a penalty as no additional costs were incurred by the employer.

the employee also had two of the weeks booked as a holiday

no other staff was taken on to cover and even if any was  then surely the amount deducted should only have been to cover any additional costs , in this case NIL

also to my understanding it is illegal to withhold accrued holiday pay.

 

 

 

 

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I think that the employee’s trade union will have access to way better employment legal advice than random folk on an internet forum.

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8 hours ago, Marea78s said:

situation as follows

 

1.) changes to production by manger to inferior equipment / methods / raw materials

2.) a particularly awkward customer

 

the employee hounded and harassed for months was blamed for events over which the employee had little or no control but still resulted in a written warning

as there could be no improvement, after a short period (6 weeks) in which there was progressively more and  more harassment a second written warning was issued

 

the employee now thoroughly upset annoyed and angry at unjustifiable treatment, tears up the disciplinary notice, walks out, returns the next morning and hands in resignation effective immediately.

 

the employment contract has a clause as follows

 

"if you leave your employment without giving the correct amount of notice ,unless it has been agreed with the employer that you may do so,

  an amount equivalent to your salary for the unworked period of your notice will be deducted from your final salary"

 

pay slip shows

 

94.5 hours worked, 1.5 hour o/t + 61.2 hours holiday pay , totalling to an gross amount of £1290.62

 

total payments £1290.62  - gross, for work done and including £502.45 accrued holiday pay, which is wrong as this should include an additional two days in lieu of worked bank holidays .

deductions of     £ 169.81 -  for ni , tax, pension etc

deductions of     £1116.56 - for unworked notice

 

net pay £4.25

 

firstly is this legal and why ,

 

to me this appears to be purely a penalty as no additional costs were incurred by the employer.

the employee also had two of the weeks booked as a holiday

no other staff was taken on to cover and even if any was  then surely the amount deducted should only have been to cover any additional costs , in this case NIL

also to my understanding it is illegal to withhold accrued holiday pay.

 

 

 

 

I worked in the UK for over 20 years before emigrating in 1981, but from what I remember, and this is also true in Ontario today, accrued holiday/vacation pay is sacred, whatever your reason for unemloyment is. Even when a company goes belly up, the receiver has to pay all employees' holiday pay out of the kitty before  creditors are paid. As for the rest, that is dependant on the contract you signed and is up to a court/tribunal to decide if you were entitled to leave without notice, because of unfair treatment by your employer. 

For now, you should contact the govt. dept reponsible for holiday pay, as you are almost certainly entitled to that.

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If I were them I would look at constructive dismissal, as Dozer has suggested. Get your friend to take legal advice on constructive dismissal. If what you are saying is true it should work out for them. 

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That is unlawful.  They will try to claim it is an express term in the Contract of Employment but it is unlawful to deduct wages for hours worked.  The exception to this may be, for instance, to pay for the cost of ordering a uniform but you have only worked for a limited period or if they have paid for external training costs that would lead to a recognised qualification.  This would be allowed but there would have to be a signed express term outside of the Contract of Employment to show that you have read that specific clause and agree to it.   And even in this instance, they could not deduct an amount that would take the employee below the National Minimum Wage.

 

It is also totally unlawful to deduct any amount of holiday pay, irrespective.

 

They can put a compensation claim forward to you for any costs that have been incurred by not serving notice.  For instance, if they have had to employ an agency worker on a higher wage (they can only claim the difference between the two wage and the agency costs) but they have to show that the work was necessary, and that the deduction was a true cost and not a penalty    There is plenty of case law about this and it is all covered by the Employment Right Act.

 

You need to get on to ACAS immediately (certainly within 3 months of termination) and start an Early Conciliation Claim.  This needs to be in place before you can commence ET.  There is no minimum service requirement for unlawful deduction claims. 

 

Just to add to that, if more than 2 years service, I would add a constructive dismissal claim to the case.  Bit more complex because it depends whether the disciplinaries were appealed, process followed etc so would need to show their actions were deliberate to breach the trust and confidence in the contract.  It's very difficult to show and if it went to case management it could get thrown out but put it in.

Edited by MobileB

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