Deduction from wages

[Guy1980]

I was put on notice (4 weeks contractual right) and gardening leave in the middle of February. Shortly afterwards I was invited to attend an investigation into my use of company internet and phone. I couldn't make the first investigation (short notice), was sick the following week, and refused to attend the following invite (I gave notice and stated my reasons which were not addressed, but essentially it was a witch hunt - e.g. I was accused of using my company mobile on a Saturday, my contract implies this is allowed). Following the investigation I was invited to attend a disciplinary meeting, with 24 hours notice. I responded stating that I felt I needed more time to prepare, and suggested the subsequent working day. This was denied.

The day after my contractual pay date (the date I was informed of the disciplinary), I found I had not been paid. Upon contacting the company I was told that I would be paid the following day less any deductions. I felt that as the company had deliberately not paid me on my contractually agreed pay date, I had the right to terminate the contract as the company had breached a condition of it. I informed the company of such (this was on the day of the disciplinary - I didn't want the formal reason for my leaving to be gross misconduct).

The disciplinary was held in my absence and I was summarily dismissed (gross misconduct). I was then paid approx. 20% of what I believe I am owed (reason cited was recovery training costs and "non work related activities" (i.e. money deducted for time spent on internet etc.))

I asked for details of the deductions as I felt it was an unlawful deduction of wages. I received a reply stating "may I remind you it is also 'unlawful' to falsify timesheets indication you are working when you are clearly not"

Although I did spend some time on the internet for personal use, I also worked flexibly, and often would work later to ensure my working hours for the day were complete, even if I spent an hour earlier in the day on the internet.

There is no record of start and finish times, and it is custom and practice for salaried employees to simply report 9-5 as hours worked (I was advised to do this by my line manager when starting at the company).

If anyone could help, I'd like to know

a) did I act unlawfully by filling in my timesheets as 9-5, if I took a personal hour through the day and worked an hour back later?

b) Is my employer justified in accusing me of falsifying timesheets?

c) Can wages be deducted for time spent on the internet (I maintain that I always completed my working hours, but even if not I think this would be unlawful)?

I have raised a formal grievance, but I'd just like some independent (and more qualified) opinions.

Thanks in advance, and sorry for the essay!

[wildcolonialboy]

Re: Deduction from wages

If anyone could help, I'd like to know

a) did I act unlawfully by filling in my timesheets as 9-5, if I took a personal hour through the day and worked an hour back later?

No. You filled in your timesheets for your office hours, in accordance with how you were instructed to fill them in by your line manager. Using the internet, even when not on lunch break, is a fairly common practice in the workforce and people often work later / overtime etc.

b) Is my employer justified in accusing me of falsifying timesheets?

No, and their use of the word "unlawful" is histrionic and hysterical, they really need to calm down. It might be a disciplinary issue or a breach or contract, (though based on what you've said and the custom and practice of the firm and done according to instruction) but it's definitely not an issue of illegality. They could also be putting themselves in a difficult position if other people had acted in that way and they did not proceed against them.

c) Can wages be deducted for time spent on the internet (I maintain that I always completed my working hours, but even if not I think this would be unlawful)?

If you have worked the hours (i.e. 40 hours in a week), then you have worked the hours (even if outside the 9-5 bracket). A timesheet is a guide to hours worked, not the tablets of the ten commandments. As long as you weren't spending hour after hour every single day on the internet, you might be fine (and even then, if you were doing so.... what level of supervision was in place? Were they providing enough work for you to be getting on with?)

I have raised a formal grievance, but I'd just like some independent (and more qualified) opinions.

Thanks in advance, and sorry for the essay!

I would say you have a strong case for unlawful deduction of wages; an employer is not permitted to deduct wages except where required or authorised (explicitly) by legislation, or authorised expressly by your contract, or consented to in writing by the worker.

http://www.acas.org.uk/index.aspx?articleid=4125

Furthermore, the fact they didn't attempt the deductions at the time, and have combined it with other very dubious deductions makes it look unsupportable and vindictive.

If I were you, I wouldn't be bothering with a grievance (though keep the option open, don't tell them yet) and I wouldn't be bothering with an employment tribunal. It is open to you to bring a straight breach of contract claim in the county court through money claim online. I would write them a "pre-action" letter outlining that they have engaged in a breach of the terms of your contract (that you be paid for hours worked, and contrary to the narrow criteria for deduction of wages allowed by law) and that I demand they be repaid or I would proceed with legal action. According to the pre-action protocol (see link here http://www.justice.gov.uk/courts/pro...on_conduct#7.1) they would have perhaps 14 or 28 days to respond formally to your letter (and they must respond) and then I would be free to bring a claim through Money Claim On-Line (depending on how much we're talking about, it might cost you about 50 pounds or so upfront).

I would then write informally, and say I was willing to not proceed with the grievance (saves them time) and not proceed with the breach of contract claim if they repay the deducted wages, along with a small premium for my trouble.

However, that is just how I would do it and it's not advice, I of course encourage you to take advice from your local CAB. This is also a firm lesson that you should always join a trade union; tbh, they would have advised you to attend the meetings and I suspect you would have been less vulnerable to being summarily dismissed. Your employer would have been far more circumspect about ****ing with you in the first place. Trade unions are there to help people in situations like yours, and joining one in future will go far in preventing you from ending up in such a situation

Edit: How long had you worked there? If more than 2 years, you may have an unfair dismissal claim

[Guy1980]

Re: Deduction from wages

Thank you for your reply.

I have not been employed for more than two years, so no unfair dismissal claim.

I have already raised the grievance, stating I feel deductions for training were punitive, did not reflect the real cost to the company, the company has not accounted for the benefit it has received from the training, by terminating my employment the company had accepted the loss of benefit of the training voluntarily, I was not made aware of the cost of the training, I was not notified prior of the deduction, I was not given the opportunity to repay in installments (the last two are specified in my contract regarding deductions).

I also think the company has acted unfairly by delaying payment to me until after the outcome of a disciplinary hearing. I was informed on the morning of the disciplinary that I would be paid that day less any deductions - this to me indicates that the outcome of the disciplinary was predetermined, though how that affects things I'm not sure.

As an aside, as I declared I was terminating the contract of employment due to the employers breach, does that nullify the companies decision to dismiss me (a decision reached after I terminated the contract)? I.e. If a prospective employer were to contact this employer, would they be able to claim I was dismissed for gross misconduct?