can my wife take her employer to court for non payment of agreed mileage allowance

[gibson]

My wife was offerred a transfer between places of permenent employment in care schemes after a period of work related sickness.
This was described as a protective measure by the company for her benefit.
when she pointed out that the proposed scheme was 8 miles further away than her current scheme she was told by the operations manager that she would not be left out of pocket by this move.
On that basis she accepted the transfer and has worked there since September 2017, with no problems and is highly regarded by team leader, staff and clients alike.
when she asked how her additional travel costs would be compensated she was told to fill in a mileage claim form for each day worked at .45p per mile
she has done so every month but has only received one payment in December 2017 equivalent to one months travel costs.
despite repeated requests to her team leader, requests to her operations manager and sending an email to her operations manager, no payments have been made.
the operations managers secretary confirmed the claims have been received but not approved by her boss.
The operations manager has not communicated directly to my wife in response to her queries, but in conversation with the team leader has indicated that she won't pay what was agreed but hasn't had any time to speak to my wife as to her reasons.
I have advised my wife to raise a grievance using her employers procedure, but I wonder if she could instead seek a legal enforcement of the outstanding amount through either small claims court or seek a ccj for the debt it now stands at £400.00 and increases every month by about £100.00

[Kati]

tagging Peridot xx Ula

[ULA]

Can I just ask a couple of questions before responding fully? What does your wife's original contract of employment state about place/location of work and is there any clause in there that states something on the lines of "The company has the right, providing reasonable notice is given, to change your work location to any of its current or future locations."

Also, what was confirmed in writing to your wife about the change of location and the reimbursement for additional travel?

[gibson]

my wifes original contract stated the name of the site she had worked at for 12 years which is 1/2 mile from our house, there was a catchall sentence in the contract that for operational reasons she could be moved within the group.
we have already exhausted a 9 month appeal procedure to fight the move and lost.
However she accepted that she could choose from any of the other sites on the understanding that she would be recompensed for her additional travelling costs.
the operations manager stated all this at a meeting attended by her union representative and a note taker, but there was nothing in writing to confirm the arrangement.
Her new team leader is aware of the arrangement as she made the enquiry as to how my wife should claim back the cost of travel, and she accepted the claimforms and forwarded them to the operations manager each month.
This company try to avoid anything in writing

[Phaeton]

Has she approached the Union Rep who was present at the meeting, to me this would be a logical first step.

[gibson]

additional information
the company my wife works for is owned by the local authority and took over the contract from another company in June 2017 via Tupe
since that date they have tried to make every employee fully mobile within the group, some employees were forced into this, others have a mobility clause and have to move, my wife's contract stated her place of work,
in a raft of changes they have tried to implement without using written notice there was an attempt to make all workers with cars insure their vehicles for business use so they could leave their static work locations and travel throughout the area to individual clients homes as required. also as required their place of work could be any of the sites on any given day on a ad hoc basis, as the ammount of work increases and decreases at each individual site
staff who had worked 4 days a week for years were put on a rota that included 5 days, or split shifts taking 3 hours of then starting again and working till 10.00pm. because of fluctuations in work staff had their hours cut on the rotas and had to put up with it.
Each time my wife's hours were cut she took holidays to make up her paid hours so her money did not go down.
some of the sites have had a meeting where they were told that they would be offered new contracts at a higher rate but they had no option but to accept them, yet they have not yet been given a copy of the contract to examine and compare with existing terms yet.
at this meeting they were told if they didn't like it they could go and work at tesco!
The whole atmosphere is one of coercion and intimidation with the operations manager behaving in a tyrannical manner towards people who are not the best equipped to protect themselves.
I forgot to mention that my wife is a care worker looking after vulnerable elderly adults in sheltered accomodation, each site has between 35 and 60 flats

[gibson]

Has she approached the Union Rep who was present at the meeting, to me this would be a logical first step.

The union rep present at the meeting has resigned his position with the union, his bosses may have thought it was affecting his work he works for the same company.

[gibson]

The union rep present at the meeting has resigned his position with the union, his bosses may have thought it was affecting his work he works for the same company.

I take your point about approaching a possible witness but unsure of his support as I feel he may be under pressure not to be involved in any confrontational situation with his bosses

[gibson]

I take your point about approaching a possible witness but unsure of his support as I feel he may be under pressure not to be involved in any confrontational situation with his bosses

Three members of staff at my wife's location have left in the last three weeks because of the treatment they have received, the company appear unconcerned as this actually makes it easier to run at a profit, it could be construed that they are aiming to reduce the workforce in this manner to reduce costs and put pressure on remaining employees to comply without a fuss.

[ULA]

Thank you for the further information. My bet without, you providing the details, is that the company used the “catchall sentence in the contract that for operational reasons she could be moved within the group” as their justification for not upholding your wife’s appeal process. By my calculation the start of this appeal process started around the time of the TUPE transfer or slightly before?

TUPE is quite a complex area however the fundamental principle of TUPE is that staff being transferred take their existing terms and condition of employment with them. If the new employer thinks that they will want to take measures, once the staff have transferred these should have been notified to the transferring employer to enable them to comply with its obligation to inform the affected employees before the transfer. The word ‘measures’ is wide ranging and involves any action, step or arrangement such as changes to working arrangements e.g. hours, location, job cuts and loss of non-contractual benefits like canteen facilities.

That said changing an employee’s employment arrangements after TUPE does not always involve a change in the employee’s terms and conditions. The contract may already include inherent flexibility, such as a right for the employer to change duties or work location, which can be used in the same way following a TUPE transfer as in other situations. However, if there is a clear change being made to terms and conditions TUPE does impose additional restrictions on an employer's ability to change the terms and conditions of employment of transferring employees.

It does sound like the new company is being very divisive in how they are dealing with the contracts they have inherited from the previous company. I am wondering If they are relying on what they believe are inherent flexibility in the contracts to make changes e.g. this mobility clause in some contracts? In which case they should be explaining to staff the reasons why they think this applies and listening and responding to any concerns staff are raising.

There is much more I could say on TUPE but mindful of your original post and the need to provide some practically advice for your wife, I would suggest that in the first instance, as the arrangement for reimbursement of the travel was made at a meeting where there was a note taker, your wife asks formally in writing for a copy of those notes which should have been placed on her file. I think we will have to see whether they comply with the request, if they do then that should hopefully provide the information needed for her to raise a grievance. If not, there is still the possibility to raise a grievance but it will need to be approached differently.

[gibson]

my wife has submitted a grievance.
can she claim that as she was offerred the transfer and her conditional acceptance was that she was reimbursed her travel expenses, and this was agreed as evidenced by the tax free payment in December, the expenses have now become a contractual entitlement.
therefore to withhold them is a breach of contract?

[ULA]

You wife in her grievance can claim that "

she was offered the transfer and her conditional acceptance was that she was reimbursed her travel expenses, and this was agreed". Since payment of travel is unlikely to be an express contractual term then I do not believe she can claim breach of contract.

Also if she received this as tax free payment the one time is was paid therein may lie the issue. If the new location is to become her usual place of work then my understanding is that the journey between someone's home and permanent workplace is deemed private travel by HMRC and counts as earning for which your wife should pay tax and NI through her payroll

[gibson]

You wife in her grievance can claim that "

she was offered the transfer and her conditional acceptance was that she was reimbursed her travel expenses, and this was agreed". Since payment of travel is unlikely to be an express contractual term then I do not believe she can claim breach of contract.

Also if she received this as tax free payment the one time is was paid therein may lie the issue. If the new location is to become her usual place of work then my understanding is that the journey between someone's home and permanent workplace is deemed private travel by HMRC and counts as earning for which your wife should pay tax and NI through her payroll

Partial success
following my wife putting her grievance in, response in 4 hours, payment of 2/3 rds of the money owed and a sharp letter telling her not to raise a grievance for a minor payroll matter!
The operations manager also told her that this payment would settle her grievance. we wrote back that as she still had not received all the overdue monies that was not the case, and would they now investigate the one outstanding payment and cough up.
I believe one of her directors must have told her to get it sorted.
Now all we have to deal with is the implementation of new contracts of employment, that we have,nt seen yet but that she has to sign and commence in April.
I thought they had to give written contractual notice of a significant change, continuity of employment or she could remain on her old contract which was Tupe'd

[ULA]

Under TUPE an employee moves across to the new employer on their "old" employers terms and conditions. Changes to terms can be made but there is a process to go through and it does depend on what the changes are and the reasons for them.

Do you have any details so I can provide a better response?