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Jenny
Jenny, Solicitor
Category: Law
Satisfied Customers: 6307
Experience:  Qualified Solicitor specialising in Employment Law and general legal matters. Please start your question For Jenny Only
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I retired from employment with a large UK Employer on 30th

Customer Question

Hi, I retired from employment with a large UK Employer on 30th June 2015 which was part way through my leave year. I was on a 72% Part-time Contract. The Employer reclaimed 5 days leave from my final wages at a rate of £304.55p per day despite my 'Basic Pay' being £74,476.08p per annum. I have contacted the pay office and they have informed me that the daily rate was grossed up to that of a 'Full-time Contract' and included supplementary pay. Is this legal?
My argument is that my 'Leave Entitlement' was pro rated at 72%, my Basic Pay was pro rated at 72%, therefore the repayment should be against what I earned as a Part-time Employee. Also, it would have been impossible for me to ever have earned £304.55p per day!
Submitted: 2 years ago.
Category: Law
Expert:  Jenny replied 2 years ago.
Hello my name is ***** ***** I am happy to help you today. They are not entitled to do that. It should be based on your actual pay. This amounts to an unlawful deduction of wages and also is discriminatory against you as a part time worker.
I would suggest you write to them to say that if they do not put this right you will have no alternative but to claim. You should also engage ACAS early claim conciliation. You will find details of which at www.acas.org.uk/earlyconciliation
Hopefully this will be enough to make them reconsider.
If you have any further questions please do ask. If I have answered your question I would be grateful if you would take the time to rate my answer. Thank you and all the best.
Customer: replied 2 years ago.

Hi Taratill,

Pay Services also informed me that they have always done this and for every employee!
I was a member of the British Airlines Pilots Association (BALPA) who have been very slow in helping me deal with my ex-employer. Would you advise using ACAS or BALPA?
I was not notified in writing or verbally by the employer that I had, or was about to take more than my Leave Entitlement which caused the recovery. Is this illegal too?

Expert:  Jenny replied 2 years ago.
No it is not illegal for them to recover if the contract of employment states they may. The practice of recovering more than your normal pay is unlawful.
You should definitely use ACAS as it is now a requirement of raising a claim in the employment tribunal that you first use ACAS. You are otherwise precluded from claiming.
Customer: replied 2 years ago.

Thanks Jenny,

Are there any references for me to quote when I write to the employer?

Expert:  Jenny replied 2 years ago.
Hi no just be sure to use the phrases 'unlawful deduction from wages' and discrimination against part time workers.
Those are phrases that should flag that you are serious and have had legal advice t the employer.
Please do remember to rate my answer. I will be happy to answer your follow on questions.
Jenny and 2 other Law Specialists are ready to help you
Customer: replied 2 years ago.

Thanks,

Should I tell them I have been in touch with ACAS?

Expert:  Jenny replied 2 years ago.
Yes you must do that. ACAS will explain the process to you. You will be given a conciliation number and ACAS may well contact them on your behalf.
Customer: replied 2 years ago.

Hi Jenny,

I have just received a breakdown from my previous employer as follows:

As discussed annual leave is paid or deducted on the contractual salary at a full time rate

Basic pay is based on full time amount your part time basic pay rate = £74476.08 Full time equivalent £103439.00
Flying pay is based on full time amount your part time flying pay rate = £5559.48 full time equivalent £7721.52

103439 + 7721.52 divide by 365 = £304.549

Pretty categoric that they have used the "Full time equivalent" to calculate the rate. Are they allowed to include Supplemental Pay as well - in this case "flying pay" or should that also be pro-rated?

Expert:  Jenny replied 2 years ago.
Annual leave simply should not be calculated at full time rate. The exception to this is if you are paid full time rate when you take leave (which is unlikely).
It should all be pro-rated. Anything else discriminates against part time workers and is unlawful.
Customer: replied 2 years ago.

The ACAS website says I should exhaust the Company's "Grievance" procedure first or this could reflect badly should the case go to tribunal. I have been asking their administration department what their "Grievance" procedure is, without reply. Therefore, I have written a letter entitled "Formal Grievance",included your advice for discrimination and unlawful deduction and given them 7 days to reply. If they do not reply to the letter, then I will utilise ACAS's service, does that make sense?

Expert:  Jenny replied 2 years ago.
Hi this is not the case when your contract has already ended. There is no harm in sending a letter though and then contacting ACAS.
Customer: replied 2 years ago.

Good Morning Jenny,

I have just received the following back from a Rep at BALPA:

"If, by 'discriminatory', the lawyer you have consulted means that this would be contrary to the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, I'm afraid I do not share their view. The daily rate of pay for full-time and part-time pilots is the same: it is the number of days they are called upon to work which varies."

I still intend to go to ACAS but, taking the above into account, do you think I can argue discrimination?

Expert:  Jenny replied 2 years ago.
without seeing the terms I cannot comment on their response. This is a general question and answer site. I think that you may need to take specific legal advice on this point and you will need to show the lawyer the policies in order for a definitive answer.
Customer: replied 2 years ago.

Hi Jenny,

I haven't seen the "Terms" either but that's another issue! I have asked the Rep to provide me with a reference for where the Company state their policy. There was nothing in my "Part-time Contract" about it.

Thanks for your help.

Expert:  Jenny replied 2 years ago.
No problem, I would go back to the union to ask for support.
Good luck with it.
Customer: replied 2 years ago.

OK thanks.

They have already said that, as I am no longer with the Company, I would have to go through the National Council instead of the Company Council and, to be honest, they are as much use as a chocolate fire guard! I'm just completing the ACAS Form, I'll see where it leads.

Thanks again

Customer: replied 2 years ago.

Hi Jenny,

I have had a formal reply from the Company who have sent me a copy of my original contract which states:
"The Company is entitled to deduct from your salary or other monies payable and reimbursable to you by the Company all and any sums which you may owe to the Company or any of its Associated Companies at any time."
I signed the contract back in March 1998.
In the Employment Rights Act 1996, Part II Para. 13, it says I should have been notified of any such deduction, is that correct?

Ray