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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46168
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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My company has a length of service payment which is paid out

Resolved Question:

My company has a length of service payment which is paid out after 18 months service. They claim I don't qualify yet because I was employed under a different umbrella within the company xxxx than the part that does qualify. However it was never made clear to me that there was a difference. I have since transferred internally to the other part of the company and they have told me my length of service is unaffected. I was contracted to work the exact same role (work and hours identical) as is eligible in the other part of the company. Can they justify this difference?

Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. can you please tell me you total length of service please.

Customer:

I started in May 2012, the bonus gets paid out in December after 18 months employment, so would have been due last December.

Ben Jones :

Ok thank you leave it with me I need to look up a few things and then get my advice ready.I will post back on here when done there is no need to wait and you will receive an email when I have responded.

Customer:

Do you need any more background info on the company structure?

Ben Jones :

not at the moment I will get back to you asap. Thank you.

Customer:

Hi Ben, are you still working on this?

Ben Jones :

Hi, sorry I did reply earlier but it does not appear to have registered in the chat box. I was just wondering if you could please provide me with the wording of the policy, specifically to see if it differentiates in any way between the two parts you worked for.

Customer:

Apparently the payment is not applicable to the first part of the company I worked for, also the payment was not yet in place when I joined, so not mentioned in my old contract. I haven't received an updated contract yet for my new role (only an offer letter), I have been made aware of this payment at my induction, so again no mention yet in a contract. Basically it states that the payment is aimed to retain people within the company and reduce the high turnover of staff they have experienced. It seems illogical they exclude some of the exact roles the payment was designed for, just because they work in a different location. I tried to attach a document with some more background info for you but that function does not seem to work.

Ben Jones :

Sorry to have kept you waiting, I had some personal issues that took priority over everything else this weekend and have just had the chance to get back to work.


 


So going back to your query, it is entirely possible for the employer to have different terms that apply to each umbrella company within the group. There is no law that states all employees working for the different umbrellas have to be treated equally or be on the same terms and conditions. One company’s employees could have more favourable terms than another’s and there could be different reasons for that.


 


As far as your legal rights are concerned, the main issue here is what your contract said about this, or if the clause was not specifically contained in there – what you were promised at the time this was introduced. This is because the matter is purely a matter of contract and what contractually applied here. So if you were specifically promised this bonus and you were not given any conditions about its application then you could argue that you should benefit from it because it was formally communicated to you, you accepted it by continuing to work under the conditions which would have qualified you to be eligible for it and there was nothing to suggest that it would not be applying to you. The issue there is that this is all going to depend on what specifically occurred and what you were told (unless the contract specifically outlines the conditions for eligibility).


 


Another issue is who your employer actually was. Again, that would depend on what was in your contract and who was mentioned in there as being your employer. If you were to argue that the other umbrella was your actual employer, that won’t be easy to prove as you are then getting into employment test territory where only a court can make a decision based on the usual arrangements in your work, who had overall control over you, who provide you with work, whom you reported to and so on. This is a complex area and whilst you can try and argue it with the employer, chances are they will disagree in which case only the courts can issue a formal decision on who the most likely employer was in this case.


 


Short of going to the courts, this is a matter you can discuss directly with the employer, as far as raising a grievance to have this looked at formally. If that is rejected then you are looking at making a breach of contract claim in the civil courts to pursue them for the amount you believe you should have been paid.

Ben Jones :

Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this? Thanks

Customer:

Thank you for getting back to me. It does answer things. I just wanted to ask one more little thing. My feeling has always been that the overall company runs the recruitment for both umbrellas and they are only separate for tax purposes.

Customer:

When I received my P45, I was told this did not affect my length of service (obviously important for a number of reasons such as 2 year window for being dismissed, SMP eligibility etc). This also means they will start to pay my professional subscription fees after 2 years service. Can they differentiate which benefits to pay out and which ones not?

Customer:

Should they have been more transparent when recruiting people as to which company they actually join?

Ben Jones :

Hi, yes they can differentiate between the benefits they pay you but that would depend on whether these are legally applicable benefits, such as SMOP, SSP, etc or just discretionary benefits that they offer entirely at their own discretion, such as the length of service benefits in your case.


 


In terms of the transparency, yes there is an argument for that but as mentioned who your employer actually is would be a matter of fact and contract – fact, in terms of who had control over you and the other factors mentioned in my earlier response, and contract in relation to what is stated in your contract. So as long as you were not directly misled about this, then the employer would not necessarily be acting illegally in the circumstances.

Customer:

Sure, thank you!

Ben Jones :

you are most welcome

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46168
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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