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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
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Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Is my son entitled to national minimum wage for hours worked

Resolved Question:

Is my son entitled to national minimum wage for hours worked if sacked for gross misconduct? Are deductions of costs arising from the dismissal allowed to reduce the pay receivable below this level?
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.
Hello, my name is XXXXX XXXXX it is my pleasure to be able to assist with your question today. Please let me know if his contract said the employer could make such deductions?
Customer: replied 3 years ago.

Relevant clause of contract below, but can this be used to reduce pay to below NMR?


23. Termination of Employment


23.1 Notwithstanding clause 1.2 of this Agreement, in the event of the employment being terminated by either party, two weeks notice in writing must be given to Your Manager. By mutual consent this period of notice may be waived or amended. During the probationary period, one week’s notice must be given by either party.


 


23.2 At the sole discretion of the Company, the Company reserves the right to pay wages in lieu of notice whether the notice was given by you or by the Company.


 


23.3 Notwithstanding any other provisions of this Agreement, in any of the following circumstances, the Company may terminate your employment immediately.


23.4 The circumstances referred to in 23.3 above are if you:


23.4.1 Commit any serious breach or repeated breach of this Agreement or are guilty of any gross misconduct or any wilful neglect in the discharge of your duties;


23.4.2 Commit any act of fraud, dishonesty or any conduct bringing yourself, the Company or any Group Company into disrepute;


23.4.3 Are convicted of any criminal offence which might reasonably be thought to affect adversely the performance of your duties.


23.5 Gross misconduct referred to at 23.4 (i) above includes, (but is not limited to):


Theft, unauthorised possession of any property belonging to the Company or any Group Company or someone else, fraud, falsification of (1) reports (2) accounts (3) expense claims and/or (4) records, violent and/or dangerous conduct, abusive and/or aggressive and/or intimidatory behaviour, bullying or other harassment of a client and/or a colleague, rudeness to clients and/or colleagues, serious and/or deliberate and/or reckless damage to property, being under the influence of alcohol and/or illegal drugs whilst at work, possessing illegal drugs, unauthorised absence(s), sending abusive and/or obscene and/or defamatory communications of any nature via (1) e-mail(s) (2) text message(s) or (3) any other media, accessing or downloading any obscene image(s) or other material from the internet or by email or otherwise being in possession of obscene material or publications or images in any media at your place of work and/or during working hours, insubordination and/or refusal to carry out duties and/or reasonable instructions, serious breach of Company policies and/or rules, conviction of any criminal offence, misuse of lift pass, bringing the Company or any Group Company into disrepute, disregard of applicable health and safety precautions, gross negligence or incompetence.


23.6 If it is deemed by the Company that you have committed an act of gross misconduct the normal consequence will be instant dismissal without notice.


23.7 The Company reserves the right to notify all applicable authorities, including the relevant police, if you are deemed and/or suspected to be in possession of illegal drugs during the course of employment.


23.8 In the event of you failing to give the Company the required period of notice as specified in this Agreement or in the case of your gross misconduct, you agree to pay the Company any amount equal to the costs incurred directly or indirectly by the Company, including, but not limited to, the costs of advertising for and recruiting a replacement representative at short notice, the cost of travel to your resort by a replacement representative, compensation to clients, and any other amounts reasonably incurred by the Company which are directly or indirectly attributable to your actions.

Expert:  Ben Jones replied 3 years ago.
I cannot see any mention of the employer being able to make deductions from his pay?
Customer: replied 3 years ago.


23.8 refers, linked to the following (which I thought i'd also provided - sorry!)


 


25. Deductions from Salary


25.1 The Company reserves the right in its sole and absolute discretion, at any time during your employment, and in any event upon termination of same, in such manner and at such time as the Company sees fit, to make deductions from your salary or from any other sums due to you from the Company, (including for example but not limited to any End of Season pay due to you) as payment for any sums you may owe to the Company, including, but not limited to, any overpayments of any kind made to you, any debt or other sum due to the Company from you, including, any loan, cash or float shortages, shortfalls in commission and pay phones, loans, advances and the costs of repairing any damage or loss to the Company’s property caused by you including accommodation, ski passes, ski equipment and Company uniform, cost of return journey to UK in the event of termination of employment or losses attributable to any negligence or breach on your part of the Agreement or Company rules.


25.2 The Company reserves the right to withhold your final salary and/or any other sums due to you from the Company (including for example but not limited to any End of Season pay due to you) until such time as you return to the Company, all Company property in proper order, including, but not limited to, cleaned equipment, all completed paperwork, and all outstanding monies owing to the Company.


25.3 Deductions concerning ski passes and ski equipment are limited to the cost of replacement.

Expert:  Ben Jones replied 3 years ago.
Thank you. It would appear that the specific clause in his contract would allow the employer to make these deductions from his wages ("losses attributable to any negligence or breach on your part of the Agreement or Company rules").

The issue is whether these deductions can bring his pay below the National Minimum Wage he is entitled to by law.

You will find the answer here:

http://www.rhhr.com/2/national-minimum-wage-deductions

In particular you will see the following paragraph:

"Deduction from pay or payments by the worker of a penalty

If you deduct a sum from a worker’s pay because of some event related to misconduct, where you are permitted to make the deductions under the terms of the worker’s contract, the amount does not reduce NMW pay."

Therefore, the employer is able to make these deductions and even reduce the employee's pay to zero if necessary, without breaching any rules in relation to paying him NMW.

Please take a second to leave a positive rating as that is a very important part of our process. Your question will not close and I can continue providing further advice if necessary. Thank you
Ben Jones, UK Lawyer
Category: Employment Law
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Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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