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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46227
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I have been advised by my Union to take my employer through

Resolved Question:

I have been advised by my Union to take my employer through the County Court for not notifying me in advance that they were going to stop my salary and also for non-payment of Statutory Sick Pay. The usual County Court Summons application seems only for monetary debt and so is not suitable. Do I need to pursue this action via a solicitor, please?
Submitted: 3 years ago.
Category: Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. Are you still employed ?

Customer:

Yes

Customer:

Hello Ben

Customer:

Hello Ben, I'm not sure if we are connected properly.Are you receiving my responses?

Customer:

Hello Ben, The Just Answer page shows that we are 'in chat' mode but I am not receiving any response.

Ben Jones :

Hi can you see my response?

Customer:

Hi Ben, yes, I can see your response timed at 12.52. Thanks

Ben Jones :

ok great, sorry about that seems there were some connection issues

Ben Jones :

So what would you like to achieve in this situation if you do not wish to pursue a monetary claim?

Customer:

No Worries. I just hope you can help.

Customer:

Hi Ben, I'm not sure that I can claim anything for the first illegal action. The second - the non-payment of SSP I expect that I can claim the underpaid amount.

Customer:

You see, with regard to the first issue - they have never acknowledged that what they did was illegal and I want them to admit that to me and the other Trustees on the Board. I do intend to make a Personal Injury claim against them for the Work-related stress all of this has caused me because they knew that I was still recovering from PTSD after a RTC last May and yet they took this action without any warning just before Christmas which left me high and dry financially.

Ben Jones :

You can’t just take the employer to court for not giving you notice before they stopped your salary but you can make a claim for any amounts you have not been paid when you had the legal or contractual right to these payments. So to claim any amounts you are still; due you can make one of two claims – either a claim for unlawful deduction of wages in the employment tribunal, or a claim for the money in the small claims court.


 


As far as the law on stopping your salary, in some circumstances employees can be entitled to full company sick pay for a set period, after which their entitlement will either reduce or expire altogether. Such reductions could either be clearly stated in a contract or workplace policy, or simply be left at the employer’s discretion.


 


In situations where an employee has been in receipt of discretionary sick pay and the employer wishes to terminate such payments, it may be advisable to give at least a month's notice to the employee. Alternatively, the employer should consider reducing their pay gradually so that the employee does not simply go from full pay to reduced pay or no pay in a short period of time.


 


Similarly, if medical evidence shows that the employee may be able to return to work in the near future and they have only just lost their sick pay entitlement, it may be appropriate to continue paying the employee for the remainder of their absence. If there is no definitive return date, the employee has already received sick pay for some time and their entitlement has expired, the employer may be justified in terminating discretionary sick pay, subject to giving the employee some notice.


 


Finally, employers rarely retain full discretion in relation to discretionary sick pay and it is governed by the implied contractual term of mutual trust and confidence. This term generally requires employers to act fairly and reasonably when dealing with their employees. If an employer does not act in an even handed manner, it could breach the implied trust and confidence and give the employee the opportunity to raise a grievance at first. If the matter remains unresolved, they could even consider resigning and claiming constructive dismissal, subject to having at least 2 years' continuous service with the company. So this is the only action you can take in terms of this, apart from pursuing the employer for the pay owed.

Customer:

Hi Ben, in the first issue both ACAS and Unison state that it is illegal to stop pay without prior notice to prevent financial hardship. In the second issue it is Statutory Sick Pay they have not paid.

Ben Jones :

why was your pay stopped?

Ben Jones :

OK, thank you, XXXXX XXXXX this with me - I will look into this for you, get my response ready and get back to you on here. No need to wait around and you will get an email when I have responded, thank you

Customer:

The Road Traffic Collision in which I was involved was a clear case of the third party being at fault and my Insurers agreed that they would reimburse my employers for any time I was not at work relating to the accident if they agreed to pay my salary in full until such time as the claim was settled. This continued and I returned to work 5 weeks later but continued to attend GP appointments and therapy sessions for the PTSD. My salary continued as normal until November salary was due. The payslips were issued 5 days late and I noticed that they had stopped 7 days salary. It was only when I queried it that I was told that the new management were not going to uphold any previous agreement. This has now been an ongoing battle. The upset and stress set back my recovery and I was off sick from 20th December due to the intransigence and ignorance of the new management team until I returned to work 2 weeks ago. None of any Statutory Sick Pay has been paid during this absence. The very thing that both my insurer and my previous manager tried to avoid (any financial hardship) has been thrown unexpectedly at my door.

Ben Jones :

there is no specific law that says an employer cannot stop an employee's salary without giving them notice. It is a generally unfair act as discussed, under the implied term of trust and confidence and of course can amount to unlawful deduction of wages if there was no legal reason for stopping it. However, this leaves you in the same position - you cannot just make a claim for this act and seek compensation just because you have been inconvenienced by this - you wither make a claim for the actual losses suffered as a result (i.e. the pay you should have been paid), or you resign and claim constructive dismissal

Customer:

It was not my intention to seek any compensation for the lack of notice of payment. I wanted them to be aware that their action was illegal. So, I assume that I must still go through the Small Claims Court for the non-payment of SSP or notify HMRC of my employer's actions in withholding Statutory entitlement.

Ben Jones :

yes, but you do not have to go to court to tell then that what they have done is unfair - this is not the purpose of court, you only go there to seek compensation for the money you should have been paid and which was unlawfully withheld

Customer:

Why do you think that I have been advised by Unison to take action through County Court for the non-notification of deduction, and why would ACAS tell me the same if it is not the case? This whole situation is stressful enough without having contradicting advice. I will speak with my Union tomorrow because I pay my dues each month and it is not right that I should be misinformed on such a point. I suppose that it is a moot point that my employer had agreed to cover my full salary in the first place (to be reimbursed by my insurer) and it was extremely cruel for the replacement manager to renegue on that promise with any warning. It is a sad World with some even sadder employers. I've been in employment for over 50 years now, both as an employee and also as an employer and never come across such antagonistic behaviour.

Ben Jones :

I cannot say why they have said that but I can guarantee you that you cannot just make a claim to the court just to send a message or prove a point - you go there to seek compensation for any losses incurred as a result from the employer's actions, these being the pay they have stopped that you should have continued receiving.

Ben Jones :

in any event, neither the union nor ACAS are legally qualified advisors, they will give you advice but that is not the same as receiving legal advice from a lawyer

Customer:

Thanks, Ben.

Ben Jones :

You are most welcome. Please take a second to leave a positive rating for the advice I have provided as that is an important part of our process. Thank you and feel free to bookmark my profile for future help:



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