Is this breach of contract

[Lizzy1988]

Hi,
I was unfairly dismissed but due to only being in employment for 1 and half years I cant claim unfair dismissal.
I went through ACAS for breach of contract due to being dismissed with no payment. The companies reason for dismissal is because I was talking to work colleagues expressing how I thought my job role was unclear and unfairly paid. They also mentioned before dismissing me they accused me of overpaying myself in January. I started a supervisor job role in December and was put through training in January, I was giving brief training on the payroll with the manager who was there at the time. She done some of the payroll and I done some then after I done it she checked it before I sent it. I followed what I was told but it turns out that the columns with shading should not of had any hours in which was not told to me. Payroll was produced and the company have accused me of being overpaid. My January wage was less than December so I did not realise this to be overpaid. Due to this they are saying that they do not owe me anything. ACAS have done the early reconciliation but will not provide any advice on what to do next. Do I take it to a tribunal or cut my losses.

Thanks

[ULA]

Was there a clause in your contract that allowed the company to make deductions to offset any overpayments, overtaken holiday etc?

[Lizzy1988]

Not that I know off

[paulajayne]

Not that I know off

Do you have a contract of employment?

[Lizzy1988]

I do but don't have a copy was never given a copy

[ULA]

If you do not have a copy of your contract then I suggest you write to your ex-employer and ask them on what basis they have deducted the overpayment. Go on to ask if it was because there was a clause in your contract that covered this then can they produce of copy of it since you were never given a copy.

[Lizzy1988]

They said the reason was because I had overpaid myself or so they claim.

[ULA]

Even so to reclaim the money back from you by deducting from your salary there needs to be a clause in your contract for them to do that or written agreement with you.

[Lizzy1988]

But how does this stand at a tribunal as there's no contact between us

[ULA]

At a tribunal you would need to prove that in recovering the overpaid salary this was done without the authority to do so either by a clause in your contract or a separate written agreement for you to do so. Without this evidence it will be very difficult to prove an unlawful deduction of wages at a Tribunal.

If you are trying to argue that the company did not carry out a proper investigation to ascertain whether you intentionally overpaid yourself rather than you following instructions and despite it being checked by the supervisor the mistakes you made were not rectified, then this should have been raised with your manager at the time. Was this mentioned in your dismissal letter as part of the reason that contributed for the dismissal?

How long were you employed at the company.

[Lizzy1988]

Thanks just think they will cause problems and not cooperate in giving me a copy of the contract.

I have never received a letter of dismissal. When I was being dismissed they mentioned the over payment but then moved to what I would think their real reason of dismissal was because I was talking to other staff about how I thought my job role was unclear and unpaid and also because staff over heard me talking about getting a new job.
My main issue is that they have never carried out the correct procedure for dismissal. I had been on holiday for two weeks and came back to being dismissed no warnings or investigation involved me.

I was with company for bout 18 months but only in supervision role for 4 months

Thanks

[ULA]

Unfortunately, with less than 2 years’ service, you can be fairly dismissed without your employer giving any reason at all. Although with anyone who has gone beyond their probationary period I would always advocate an employer follows a procedure to dismiss an employee with less than two years’ service that is in line with best practice, not all employers do. There are certain types of dismissals that are automatically unfair but from what you have said so far your case would not fall into one of these categories and therefore any claim for unfair dismissal would be unlikely to succeed.

In regard to the deduction from your wages as I have said at my post #10 to make a claim it would really support this if you had the evidence to proof that there was not a clause in your contract allowing the company to deduct overpayments from wages. If you do not have this then you would be relying on a disclosure request as part of the employment tribunal claim for your contract to ascertain the existence of such a clause or not.

[Lizzy1988]

I know I can't go for unfair dismissal. i was going for breach of contract.

[ULA]

What term of your contract of employment are you alleging a breach of?

If it is due to the recovery by your employer for the overpaid salary then you need to confirm there is not a clause in your contract that permits them to do this. Effectively this is also considered to be an unlawful deduction of salary.

If it is regarding your dismissal then you would need to be certain that any dismissal process your company had in place was contractual and was applicable to staff with less than two years service. My experience is that it is very rare that a company's disciplinary/dismissal process is a contractual obligation and normally forms part of the non-contractual policies of the company.

[Lizzy1988]

I alleging the breach of contract as they never followed any disciplinary procedure.

Thanks