The Limitation Act 1980 - Advice Greatly Appreciated

[muzzy17]

Hi,

This is my first post so thanks for taking the time to read this. To give you a brief overview of my circumstances I was employed by a government organisation who will remain anonymous for fear of reprisals at this time. I resigned from the organisation in 2009 so that I could facilitate a move to New Zealand on a permanent basis.

To give you a brief outline I was employed by the organisation initially as a Support member of staff back in September 2003 leaving to take up a new position within the same organisation in August 2008 again with the same organisation. The dispute with surrounds my salary whilst employed as a Support member of staff with the organisation between the above aforementioned dates.

In October 2013 I was made aware by an ex colleague that the organisation had made some mis-calculations with their pay formulas and that some members of staff had been underpaid as well as overpaid. I wrote a letter to the payroll department and was asked to wait until payroll had looked into my pay to decipher if I had been underpaid. In December 2013 management informed me that I was to be paid just £1001.40 (for 1 year's erroneous back pay) without any further consultation of the matter, I duly responded stating that I did not accept this amount and if the organisation did pay this into my bank account It was by no means an acceptance of the matter, I also asked not to be taxed on this amount as I was a foreign resident for tax purposes but they went ahead and taxed the payment again without any further consultation.

The organisation along with all other similar government departments across the country have to adhere to the Pay And Conditions Handbook which is a government document, and is also written into employee's contracts. On this occasion along with many other people who were employed by the organisation as support staff, this was not adhered to since 2003 due to an 'administration error' on the organisations behalf. The head of the organisation I used to work for has since replied to me stating that this could be considered as a breach of contract.

The reason the organisation are making it difficult for me to recover all outstanding monies owed is because they are applying The Limitations Act 1980 to make reduced payments to all staff affected which I feel is appalling and immoral.

This issue has made the local news and the head of the organisation has gone on record stating the organisation "had both moral and legal duties to correct the pay errors" what the head doesn't go on record to say is that the force would be applying The Limitations Act 1980 to make reduced payments to staff.

The key part I feel, is if I would have knowingly known at the time I was being underpaid I would have acted to recover the money owed its only natural. The organisation have clearly put myself and others at a disadvantage by only realising this error as a mistake in August 2013 and then applying The Limitations Act 1980 to make reduced payments.

I believe that section 32 subsection (c) The limitation act 1980 provides a valid argument to postpone the 6 year time limit in recovering the monies owed as I did not knowingly know that a mistake had occurred and I would have quite naturally sought to remedy the problem straight away had I known my pay and pension had a monthly shortfall dating back to 2003. Does anyone know if this would be a good legal argument in court? Here's the S.32 definition (see subsection c):

32.--
• (1) .... where in the case of any action for which a period of limitation is prescribed by this Act, either-
(a) the action is based upon the fraud of the defendant; or
(b) any fact relevant to the plaintiff's right of action has been
deliberately concealed from him by the defendant; or
(c) the action is for relief from the consequences of a mistake;

The period of limitation shall not begin to run until the plaintiff has
discovered the fraud, concealment or mistake (as the case may be) or
could with reasonable diligence have discovered it....

The report that I have obtained puts the errors down to "Inconsistent practice and poor communication between the operational teams, the Resources Management Unit, Human Resources and Payroll. These issues stemmed from the lack of end to end process, control and written procedures governing shift pattern changes. The risk of reoccurrence although much reduced following the discovery of this error, will remain until procedures are formally documented and communicated"

In closing there are around 250 members of staff affected I believe.

I along with 7 other former employees (That number is likely to increase) are looking to take collective legal action as we are all in the same situation with regards to our pay arrears the only difference is our lengths of service differ. I am the nominated spokesperson for our group.

My only questions are:

1. Do this organisation have a case to answer with regards to a breach of contract?
2. Would S.32 subsection (c) The Limitations Act (See above definition) be a good argument in a court as a mistake has been made?
3. Can an application be lodged to instigate employment Tribunal proceedings regardless of the 3-month timeframe, as I did not knowingly know our pay was erroneous?
4. Would a civil case be more likely to succeed for a breach of contract?
5. Could we also charge the organisation interest on any monies owed in my own case I believe that i'm owed around £10,000 and above?
6. Lastly if there was any future action taken could an application be put to the courts requesting that all our associated costs and legal fees be met by the organisation in the event they lost the case?

I hope this all makes sense, I apologise if there was any ramblings.

I look forward to hearing from anyone who has experienced similar problems or anyone who specialises in this area of employment law.

Thank You

Muzzy17

[teaboy2]

Re: The Limitation Act 1980 - Advice Greatly Appreciated

Hi,


32.--
• (1) .... where in the case of any action for which a period of limitation is prescribed by this Act, either-
(a) the action is based upon the fraud of the defendant; or
(b) any fact relevant to the plaintiff's right of action has been
deliberately concealed from him by the defendant; or
(c) the action is for relief from the consequences of a mistake;

The period of limitation shall not begin to run until the plaintiff has
discovered the fraud, concealment or mistake (as the case may be) or
could with reasonable diligence have discovered it....

The report that I have obtained puts the errors down to "Inconsistent practice and poor communication between the operational teams, the Resources Management Unit, Human Resources and Payroll. These issues stemmed from the lack of end to end process, control and written procedures governing shift pattern changes. The risk of reoccurrence although much reduced following the discovery of this error, will remain until procedures are formally documented and communicated"

In closing there are around 250 members of staff affected I believe.

I along with 7 other former employees (That number is likely to increase) are looking to take collective legal action as we are all in the same situation with regards to our pay arrears the only difference is our lengths of service differ. I am the nominated spokesperson for our group.

My only questions are:

1. Do this organisation have a case to answer with regards to a breach of contract? Section 13 employment rights act 1996, so yes.
2. Would S.32 subsection (c) The Limitations Act (See above definition) be a good argument in a court as a mistake has been made? You weren't aware of the underpayment of wages. The limitation periods applies only from the date you became aware of it, not the date it occurred.
3. Can an application be lodged to instigate employment Tribunal proceedings regardless of the 3-month timeframe, as I did not knowingly know our pay was erroneous? - As its involves unpaid wages (Basically a debt owed to you), then your better of claiming it at country court, where their is not time limit to claiming.
4. Would a civil case be more likely to succeed for a breach of contract? - Yes and much cheaper to issue a claim, your no longer eligible to go to employment tribunal anyway
5. Could we also charge the organisation interest on any monies owed in my own case I believe that i'm owed around £10,000 and above? Yes 8% interest i believe is the going rate -You will need to use an online calculator that is purposely meant for working out such interest, its not the same as adding 8% of the total sum on top of the total sum.
6. Lastly if there was any future action taken could an application be put to the courts requesting that all our associated costs and legal fees be met by the organisation in the event they lost the case? Generally the losing party does pay the costs incurred by the other party. Though theirs different ways to work out costs of a Litigant in person i.e. where you represent yourself in court.

I hope this all makes sense, I apologise if there was any ramblings.

I look forward to hearing from anyone who has experienced similar problems or anyone who specialises in this area of employment law.

Thank You

Muzzy17

Also as you were working in the UK at the time of said underpayments, then yes tax is payable on amounts repaid to you, regardless of your current status, as back then you were liable to pay the tax on your earnings. Basically when you were underpaid, you also underpaid your taxes, that would have been paid if no underpayment had occurred.