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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 44867
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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Hi, I need some assistance with an issue that has arisen

Customer Question

Hi,

I need some assistance with an issue that has arisen with my current employer. I was awarded a bonus payment for the previous years work, I have since resigned and the company is intending to take payments out of my paychecks that I will be receiving over my 3 month notice period. I will be unable to maintain my personal finances if they do this. Is there anything that I can do?

Many thanks

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

Ben Jones :

Hello, my name is Ben and it is my pleasure to assist you with your question today.

Ben Jones :

Is there a clause in your contract that says they can do this?

JACUSTOMER-9md1l9tq- :

Hi Ben,

JACUSTOMER-9md1l9tq- :

I have a letter that says the company "may" take this money back if I leave within twelve months of receiving the bonus.

Ben Jones :

is that the only reference to this, nothing else in your contract about eligibility for bonus, clawback provisions, etc?

JACUSTOMER-9md1l9tq- :

I have not seen my contract for a while and am in the process of trying to get it back. There is nothing about a clawback in my original contract.

JACUSTOMER-9md1l9tq- :

Do I need to serve my notice period if this is how they want to treat me?

Ben Jones :

The employer's proposed actions would potentially amount to an unlawful deduction from wages, which is made illegal under the Employment Rights Act 1996.

Under law, an employer can only make deductions from, or withhold an employee’s wages in the following circumstances:

  • If it is legally allowed (e.g. to deduct tax);
  • If it is to recover an earlier overpayment of wages made by the employer; or
  • If the employee has given their explicit written agreement for the deductions to be made or this is done due to a provision in their contract

This is not an overpayment, and they cannot really rely on a letter they have issued you with allowing potential claw back unless you had either signified your consent in writing or this was specifically allowed under your contract. If none of the above exemptions apply, the deductions will most likely be unlawful. In order to try and resolve this, the employer should be contacted in writing, advised that this is being treated as unlawful deduction of wages and ask them to pay back the money within 7 days. Advise them that if they fail to pay the money that is owed, legal proceedings could follow.

If the employer does not return the money as requested, the following options are available:

  1. Employment Tribunal - the time limit to claim is only 3 months from the date the deductions were made. To make the claim, form ET1 needs to be completed and submitted - you can find it here: https://www.employmenttribunals.service.gov.uk/employment-tribunals
  2. County Court – this is an alternative way to claim and the advantage is that the time limit is a much longer 6 years and is usually used if you are out of time to claim in the Tribunal. The claim can be made online by going to: www.moneyclaim.gov.uk.

Hopefully by warning the employer you are aware of your rights and are not going to hesitate taking further action they will be prompted to reconsider their position and work towards resolving this.

If they are making an unlawful deduction then it could amount to breach of contract and you can treat yourself as having been constructively dismissed, which means you can leave with immediate effect and without having to serve your notice period.

JACUSTOMER-9md1l9tq- :

Thanks Ben, as they are still in the process of determining how much they will take back over the 3 months, what should be my first action to take to them?

Ben Jones :

you may warn them that what they propose to do is most likely unlawful and that you request they do not do as proposed, otherwise you will have to take the matter further as soon as the first deduction is made

JACUSTOMER-9md1l9tq- :

Ok, is there any benefit in me approaching a director who can assist and overthrow the decision, I have heard but can not be certain that this has happened in the past.

Ben Jones :

to be honest you have nothing to lose - the worst outcome is they still go ahead with the deductions

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?

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