Pay

[ajpatty]

My former job has not paid me today for period early december! I only worked a few shifts as I handed in my notice and was sick for my last 2 days of employment. I have emailed the boss and he has replied saying they have deducted sickness and also money to pay back a NVQ/Diploma I had not completed. I did sign something regarding the Diploma, but I dont remember it saying it would deduct my final wages (In December :o(), just that there was payment methods if you should leave the company before completing it, which I kind of acept, but our NVQ asessor left an dwe didnt have another one for 2 months. DO I have a leg to stand on? Is this not a little back handed? And its Christmas!!!

[leclerc]

Re: Pay

I think you need to re read your contract of employment in terms of what it says about this one first of all. Did you complete the NVQ or was the reason directly as a result of the NVQ assessor leaving?

[stevread1]

Re: Pay

First you should have had a payslip stating how much you have been payed and how much you have been deducted. Secondly ask them if you can see a copy of the document you signed. If they say no then probably they are hiding something. Tell them you want paying otherwise you will take legal action then if they are in the wrong they should pay up ,rather than risk being hit with a load of court costs.

[Celestine]

Re: Pay

bump x for eloises attention x

[Eloise01]

Re: Pay

There are three issues here:

1) They deducted pay for two days sickness. Unless your contractual notice is more than a week above statutory notice, then legally you are entitled to be paid your normal pay duriung your statutory notice period. But only for a week (if your notice is longer then it is still only for a week). Of course, whether that applies depends on contractual terms not in evidence here - if it was a zero hours contract, then it would be nothing! If the notice was for more than a week, it also doesn't apply. However, at the same time, I think that the employer, whilst they may be legally wrong in not paying you, would have a right to insist that you provide medical evidence that you were sick, and if you cannot do so it gets rather messy for everybody. Obviously, at the very least, the employer is slightly perturbed by the fact that you happened to be sick during your notice period for your last two ever shifts.

2) If the poster has signed a training agreement with a clawback clause, which is the common reason for such agreements, then it is a debt to the employer in law, and the law permits them to recover from salary. And in the case of a final salary, they are entitled to deduct the entire salary if that is what is owed - and still claim more if there is more outstanding. NVQ's generally, I believe, have no "deadline" for completion, so there is no basis in arguing that the assessor left - another would and could have been appointed. The issue is that the poster resigned before completion - unless this is a rare agreement, resignation triggers clawback, even after completion if there has not been a period of time elapsed after completion (usally, again, outline in the agreement)

3) It is Christmas. I doubt they care and they don't have to.

In relation to (1), if the poster is only required to give a weeks notice and that is what they gave, then they are entitled to be paid their normal pay for the entire week including the two shifts that they were sick for. If the employer wishes to allege that they were not actually sick, then they must do so, I doubt if they can evidence that, but it's likely to get messy. If the OP wishes to claim for this - assuming the can - then a tribunal claim must be made within three months less a day of the action complained about, although I would count it from the last date of employment to be on the safe side. Don't forget the "less a day" - it isn't three months!

In relation to (2) the poster may ask to see the training agreement and the breakdown of costs. But it is very probable that the employer is correct, since the OP recalls signing this agreement. Obviously, the employer has to produce it if asked / challenged, but the chances they have lost it are not high!

In practical terms, depending on what the two relative costs are, it may be worth trying a trade off - I won't pursue the sick pay if you don't pursue the training costs (or the balance of the training costs if relevant). There may be a leg to stand on, but it's a shaky one - best (a) find out the facts and (b) try to resolve it amicably. Otherwise it could cost the OP more than they gain. The training costs could amount to significntly more than what has already been taken back.

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For clarity, in case anyone else reads this, the right to normal pay during your notice period relates to statutory notice periods and those may vary depending on whether the employer or the employee gives notice. In the case of an employee, statutory notice is always one week, and whilst it is not a requirement, if you are sick during this time it is best to try to get a fit note from the GP (they don't have to give one for the first week, but many will if asked or in certain circumstances like this, where pay may depend upon it). Notice from the employer is one week up to two years continuous employment and then one week for each extra completed year. If unsure about whether you are entitled to pay for sick leave during notice - check it out, and don't assume.

[ajpatty]

Re: Pay

Thank you for reply Eloise. Just CNN update and question. My last two shifts equates to 4 days work. It was 2 days on 3 days off shift pattern. I never got paid sick pay ever from the company...if you didn't work you didn't get paid. I did sign an agreement for the NVQ so will probably have to accept that. They took from my final wages the 800 (nvq) 55.10 (holiday overpayment) and also 361 in absentee hours, (my last 2 shifts =2 x 48 hour shifts). So they are asking me to pay back wages that I have not worked. This is the bit I don't understand???

Thank you

[Eloise01]

Re: Pay

In terms of the NVQ - at least get a copy of what you signed and check it, although I agree that I doubt there is wriggle room, because there seldom is.

I am not sure what you mean by never being paid sick pay. If you qualify for SSP (I am assuming there isn't company sick pay) there are three waiting days for which you are not paid, and then you get SSP - obviously, as I said, assuming you qualify (that's based on earnings - I think it's at least £107 per week you have to earn, before tax, but please don't take my word for that because I had to just look that up on the government site, and I seldom trust the government about anything!).

In this specific case you are referring to, I'm a bit unclear here. Well, actually no, I am totally confused. Are you saying that you took two days sick, had three rest period days also sick, and a further two days sick - so seven days in total? And if this is correct - did you conform to the sickness reporting policy including the rest days you were sick for? Not sure if that makes total sense - so an example. A lot of policies say you must phone in sick on the first day by a certain time on the first day of sickness, and that you must then phone in by a certain time on the third or fourth day again if you are still sick. Did you have such a policy and did you conform to it?

And in terms of the £361 (I assume that is £ - not 361 hours which you were absent for?) it may be that your "working week" includes your rest periods, so you were absent for seven days in pay terms, not four days (2 shifts) - some employers pay by days in the year, not just working days. So, for example, a days pay is 1/365th of the total pay. But I am afraid on this one, for now, I am going to have to go with my stock answer - have you asked the employer the question? They have to explain to you how they have calculated this deduction, and my guessing isn't going to come up with the right answer. So you will have to ask.

Then when you have some answers, it may or may not make more sense. All of which may be moot - if your notice period was just a week and that is what you gave then it wouldn't matter as you would still be entitled to full pay. Was it?

[ajpatty]

Re: Pay

Hi thanks again for reply. I gave a months notice. There was no sick pay for first year, and i was intitled to SSP. Yes I took 2 sick days then 3 rest days still sick, and then was still sick for final shift. I called in sick using correct procedure. Your right it's £361 which equates to 4 x 15 hour shifts, my last shifts. This is what they are asking me to pay back.......I did ask them in writing what this was and why? They didn't really explain anymore than before saying...."absentee hours" and that they will no longer correspond with me unless it statutory and also they want the rest of the money that my final wages didn't cover......£155. This was the break down that they sent:
Please find enclosed a copy pay slip detailing your wages breakdown as follows:- Total owed £1,217.06 minus £169 tax refund= £1,048.06Total paid £892.82Balance Outstanding £155.24 Gross Pay £892.82Basic Salary £699Sleep in Pay £193.504 hours Overtime-readjusted to hourly rate Deductions £892.8255 Absentee Hours (55 x £6.62= £364.10)This was shown on your payslip to £208.86 which was the total recoverable amount as a negative figure cannot be process on your wage slip.You therefore still owe £155.24. Absentee Hours £361.10Overpaid Holiday £52.96NVQ Deduction £800.00 Total:£1,217.06

[Eloise01]

Re: Pay

In that case, I am afraid that I think your employer appears to be generally correct in not paying your normal pay, although you should have been entitled to SSP since the period was for more than three days. What I am not clear about is the deduction for absentee hours. Have they first calculated your pay as if you worked all your hours, then deducted the time off sick? That's what they appear to be saying, although I admit it isn't at all clear to me, and it's an odd way of doing it. But there should be SSP in there somewhere, and I can't see it accounted for.

It may be worth trying out the pre-claim conciliation service run by ACAS, details here: http://www.acas.org.uk/index.aspx?articleid=2744 Since they will attempt to talk to both sides and try to sort this out without a claim being made, if you are right and there is something wrong here, then they would hopefully be able to resolve it with the employer - but the employer would be most unwaise to refuse to talk to ACAS, and if they are correct then they will be able to show ACAS that they are.

The issues I would be raising with them would be where your SSP is; what the deduction for sickness is (assuming that you haven't been paid first - you should know what you ought to have been paid from previous wage slips); and how they have arrived at the cost of £800 for the NVQ and whether they can evidence this cost. If nothing else, not that it is great news, the SSP should further reduce what you may still owe them!

At least if ACAS could get to confirm the figures, you know where you stand. Sorry but I think that's the best I can do with this one.

[ajpatty]

Re: Pay

Thanks again. I only ever get paid for hours worked and the final wages they paid me (although they took them all) seem correct given it was half a month and looking at my hours worked, which I wrote down. There is no over payment of wages at all to me. I am perplexed. I think you are right I will contact ACAS. It has felt like they are asking me to pay them back for covering my sickness, as the dates for absentee hours are those sick dates.

Cheers for your help.

[Eloise01]

Re: Pay

Stupid question, but on past experience, maybe not... you have read your contract? Some employers have attempted to include clauses that say you have to pay for cover if you don't attend work. These are usually not enforceable, but sometimes, just sometimes, they are. Is this care work - that's where I've come across it before.

[ajpatty]

Re: Pay

It is care work. In the main statement of terms it doesn't say this anything about paying monies back under sickness or anything under notice, nothing about absentee hours. There is also a handbook, which again says nothing about absentee hours.

Thanks

[Eloise01]

Re: Pay

It is care work. In the main statement of terms it doesn't say this anything about paying monies back under sickness or anything under notice, nothing about absentee hours. There is also a handbook, which again says nothing about absentee hours.

Thanks

That's good. But it still doesn't mean the maths isn't right. I can't tell. Try the ACAS pre claim. Hopefully that should sort it whatever way.