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michael holly
michael holly, Solicitor
Category: Employment Law
Satisfied Customers: 6658
Experience:  Over 20 years experience of dealing with employment law matters and qualified mediator
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My employer gave me incorrect advice which I acted on and

Customer Question

Hello , my employer gave me incorrect advice which I acted on and ended up losing approx £5K.
I applied in March 2015 to retire from work under the government Voluntary exit scheme. I was unsuccessful. I intended to apply again n October 2015 but at this time I had reached the age of 60 so had two choices. Apply for the VES or apply for Phase retirement. I was told that if I applied for the phase retirement , I would disqualify myself from applying for the VES as the scheme does not cover people intending to retire sometime in the future. As I would be taking a gamble applying for the VES not knowing if I would be selected, I chose the phase retirement which was a certainty. If I had cancelled my phase retirement application and applied and failed with VES , I would have to start again with the phase retirement process, which would take some time meaning I would most likely have to leave it for another year ( I work as a lecturer in FE).
I am on phase retirement now and the VES is again being offered in April 2016. I have found out that I can indeed apply for the VES even though I am on phase retirement. My employer made a mistake saying I could not. The consequence for me is that the compensation for VES is based on your current salary and as I had to reduce my salary by 25% to get the phase retirement my compensation is reduced by 25%. Had I know in October 2015 that I could of applied for both and had been selected for VES , I would have got an unreduced 100% VES compensation. Can you advise me if there is anything that I can do?
Submitted: 10 months ago.
Category: Employment Law
Expert:  Nicola-mod replied 10 months ago.
Hello,
I've been working hard to find a Professional to assist you with your question, but sometimes finding the right Professional can take a little longer than expected.
I wonder whether you're ok with continuing to wait for an answer. If you are, please let me know and I will continue my search. If not, feel free to let me know and I will cancel this question for you.
Thank you!
Nicola
Expert:  michael holly replied 10 months ago.

Subject to certain provisos you have a claim against them for your loss.

This area of law is called negligent mis statement.

You have a cause of action against them subject to certain conditions

You will need to produce evidence that the advice was given unless they fail to dispute it.

You will need to show that the advice was not equivocal.

And the relationship must be of an advisor whose judgment you are reasionably entitled to rely upon (for example accountant and client).

Finally you will need to be able to show how the loss occurred and justify the amount.

I would start with a letter setting out the claim which states at the end that unless you receive the sum within a certain deadline such as 7 or 14 days you will commence County Court proceedings against them for the sum plus costs and interest without further recourse to them.

A claim would be allocated to small claims track by the court where the procedure is pretty straightforward and you can commence a claim online.

The search engine on your computer will bring it up if you put in "commencing proceedings online uk" or something similar.

I hope this helps if there are any further points please reply and I will be happy to respond.

Best wishes

Michael

Customer: replied 10 months ago.
Thank you Michael
The person who told me was my line manager and or the HR department , I will have to go back and check my emails . The line manager verbally told me that once I go down the phase retirement road , I am actually stating that I intend to retire in the near future ( 2/3 years) so excluding myself from the VES scheme. This info was found to be incorrect by myself just recently so they , on the spot changed their incorrect rule and emailed me that I could apply.
At the moment they are ignoring me explaining the financial loss that has happened to me. As I was unable to apply back in October , I do not think I have suffered an overall financial loss ( I will have to check) as I have been paid a reduced salary and 75% of my pension from October to now so the loss may be cancelled out. My loss is with the scheme compensation paid out to me.
I challenged them on the scheme policy on inconsistent treatment of different circumstances. A person on a career break say one year will have their previous salary used in working out the compensation. A person on sick leave at half pay or no pay have their previous years salary used in calculating the compensation. A person who recently has been promoted, but the promotion is less than 2 years, they use their old salary in working out the compensation. They have no provision made for phase retirement. I was on a full salary til Dec 2015 and from then 75% full salary so they are using the 75% salary in calculating the compensation. I personally believe they thought phase retirement would not be part of the scheme so made no provision for it so are now making it up post scheme running. The civil service scheme makes provision the same as the 3 examples I gave above and they also make provision for phase retirement in which I would not be penalised and would get the full amount . I put this to my employer but they just said are scheme is different.
Expert:  michael holly replied 10 months ago.

They have altered the rule so there is no argument about them being culpable.

I would argue you should be able to rely on your HR department or line manager for correct advice, they both should know.

Finally your argument on loss is easy to follow and logical.

I would pursue this.

Best regards

Michael

Customer: replied 10 months ago.
Thanks Michael.
The fact that I overall may not have lost out financially , could they argue that back at me ?
Is the inconsistency treatment worth having as a fall back , if so can I argue the two issues at the same time?
Finally , could they make me go to an employment tribunal instead of the small claims ? thanks **********
Customer: replied 10 months ago.
Also , the end date for my employment will be January 2017 and this is when they will make the actual compensation payment. Will I have to wait till then to make the claim?
Expert:  michael holly replied 9 months ago.

The payment date would be the date of which it would ordinarily have been paid but you should claim now to ensure it will be included in that payment.

Best regards

Michael

Customer: replied 9 months ago.
Hello Michael
I have to complete a form stating that I except the offer by 12 noon on Tuesday 31st. Can I still give my acceptance of the offer and exit date of 31st January 2017 and still put an appeal and grievance in against the compensation value? If my appeal / grievance fails do I then go to the small claims court for redress ? Thanks *****
Expert:  michael holly replied 9 months ago.

Dear **********

It depends on the terms of the offer. If it is in full and final settlement and you accept you can take it no further. It is a final settlement and the only way you can challenge it is by saying you signed it under duress.

A court is unlikely to accept duress.

Michael

Customer: replied 9 months ago.
Hello Michael
I have accepted the VES offer due to the deadline and HR saying that I cannot appeal the compensation awarded as it follows the scheme rules. They have ignored the fact that I was lead to believe that I could not apply last October when I could have .I also emailed HR before the deadline saying that I was placing a grievance with my employer as I lost out financially due to their error. The error is that HR produced a VES booklet explaining the terms of the scheme and in it , it says that if you make known to your employer that you intend to retire in the future, you cannot apply for the VES. With this information , I did not apply as I had made known my intension to retire but the phase retirement process was not complete as I was just waiting for a start date . Can they argue that I could have stopped the implementation of the phase retirement and applied for the VES and so get the better deal.? Also the fact that overall , due to my salary earned since October I have not lost out financially. My loss is that had I known I could have applied in October, my VES award would have been 5k more than it is now. Thanks Brian
Expert:  michael holly replied 9 months ago.

Dear *****

Yes they can argue that you could have stopped the implementation but how would you have known to do that. You were dependent on their advice and as a consequence of following their advice you lost £5000. It seems to me that they cannot get away from that.

Michael

Customer: replied 9 months ago.
Thanks Michael.
I have to meet with HR next week for what they say " is to to clarify a few issues".
Would I say to them at the meeting that I intend to go to the small claims court if a satisfactory resolution is not achieved.? As I am still employed am I ok in using the small claims court?
Thanks
Brian
Expert:  michael holly replied 9 months ago.

Dear *****

I suspect the meeting is intended to fudge this over. The basic facts are simple their professional advice cost you £5000.00.

You can say that you intend to take proceedings , if necessary. In fact , I would make it clear that I will. But you need to show that you understand litigation is a matter of last resort and it is the company you would be suing. The company is vicariously liable for the acts of employees for negligence acts committed in the course of employment. The area of law is negligent mis statement. The case which provides you with a legal course of action is called Hedley Byrne v. Heller.

Michael

michael holly, Solicitor
Category: Employment Law
Satisfied Customers: 6658
Experience: Over 20 years experience of dealing with employment law matters and qualified mediator
michael holly and other Employment Law Specialists are ready to help you
Customer: replied 9 months ago.
Thanks Michael
I have copied the paragraph below from the colleges' VES booklet. Would this be their get out Claus ?. The Booker is only 5 pages and at www.nwrc.ac.uk/ VES/. Brian
17. Staff must take their own advice in arriving at a decision to apply for and accept an offer of voluntary exit.
Customer: replied 9 months ago.
Hello Michael
They cancelled the meeting until next week, the only thing I need to know is:
I have lost out on 5K due to their mis statement. Overall due to salary earned from October 2015 to now ( which I would not have earned if I had of retired under the VES scheme) I have made good the loss so their mistake overall hasn't left me out of pocket. Would I still have a case?
Thanks
Brian
Customer: replied 9 months ago.
Hi Michael
Could you answer the query if possible as I have the meeting tomorrow?
Brian
Expert:  michael holly replied 9 months ago.

Dear *****

It is not the same at all . You are entitled to that sum without having to work for it.

Working and making good their loss is not the same at all . You have supplied services and you deserve to be paid for them.

Michael

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