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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
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Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Hi, you helped me back in July with the above correspondence.

Customer Question

Hi, you helped me back in July with the above correspondence. Can you help me again as I am having more difficulties with my employer. Many thanks, Yvonne
Submitted: 4 years ago.
Category: Employment Law
Expert:  Ben Jones replied 4 years ago.

Ben Jones : Hello, my name is Ben and it is my pleasure to assist you with your question today. What are your specific queries in relation to this please?
JACUSTOMER-jndfe19i- : I have made 2 grievances one in may and 2nd in august. Ist I did not agree outcome appealed and heard nothing more. 2nd incident asked many times to be heard. I have been off sick since for stress at work initially now depression and increased angina attacks. Had hearing last week after putting in grievance over 6 months ago. They did not have a copy of my grievance just a copy of a letter sent to chief exec in October. They sre now investigating
Ben Jones : Thanks and what would you like to know about this exactly?
JACUSTOMER-jndfe19i- : I was sent to OH 3 months ago he recommended counselling and off work for 3 months. They are sending me to Oh again soon. My union rep asked they fund counselling during myn medical review 6 weeks ago. and I have been in contact and they are considering this. The latest is that they overpaid £3000 and I informed them straight away. I am in severe financial difficulty and was overdrawn and the money got gobbled up by my bank.
JACUSTOMER-jndfe19i- : Sorry sent in error not finished yet, I will continue
Ben Jones : No problem, if you can just list your queries I will deal with them today and get back to you, many thanks
JACUSTOMER-jndfe19i- : I have asked bank who will not release. I have informed company that I will now be on half pay this month. I offered to pat £20 per month but they refused, part of my wages is ssp.
JACUSTOMER-jndfe19i- : I have had numerous letters regarding this from HR and I have been contacted by my manager about repaying as he had not been informed by the company. The company wants to see my bank statements which I feel is my private business. I my union rep has said they can ask my bank to reverse the baca payment.the latest is that HR has informed me that they will take my wages this month. As I said I have been off for 6 months and this overpayment is human error and it has now compound the situation causing me ever more stress and anxiety. I want to return to work but with all that has gone on it will be extremely difficult. Where do I stand with this?
Ben Jones :

Thanks for your patience. As far as the overpayment is concerned, if someone has genuinely been overpaid by their employer, then that is not money to which they are legally entitled and it should be repaid. Of course it is rare that the employee will be at fault for this so it is understandable that if you are financially affected by this it would be stressful and upsetting.

The law does allow an employer to recover genuine overpayments from the employee’s wages, without their consent. However, at the same time they need to act fairly and reasonably and within the implied term of trust and confidence, which exists in every employment contract. That does mean, for example, that if the deductions will leave you in financial peril, the employer should consider reducing these so that you are not left with an unreasonable amount to live on, especially if this was their fault.

In terms of stopping this from happening, it may not be easy unfortunately. You cannot prevent the employer from deducting the money in the first place – your rights are really there to pursue the employer if they go ahead and do that. For example, it could allow you to resign and claim for constructive dismissal, as well as a potential disability discrimination claim. At this stage, these are really the only options, short of pursuing the matter internally, such as through a grievance. Of course, continue trying to discuss this with the employer and to reach an agreement, remind them that this was their fault that you should not be forced to suffer financially as a result and that as a reasonable employer that is required to act within the implied term of trust and confidence, they should consider reducing the deductions and agreeing to a periodic repayment.

Ben Jones :

Hello, I see you have accessed and read my answer to your query. 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?

JACUSTOMER-jndfe19i- : Hello Ben,
JACUSTOMER-jndfe19i- : Sorry for not replying sooner. There has been a lot of correspondence with my employer and my union the last week or so. I am having a telephone consultation with OH later today. I was seen 3 months ago where the doctor recommended counselling and assessment from the hospital. I have been to the hospital and am on waiting list for counselling. At my medical review 6 weeks ago HR said they would look into them funding the counselling for me, I have reminded them but nothing yet. I would like to send you emails to me from HR. I sent a copy of my bank statement to them yesterday as they said they could not take my word that the overpayment had been gobbled up by my overdraft.
JACUSTOMER-jndfe19i- : Even though I have told them I am in financial hardship they have this month taken half my wages and said they have the right to take all of it next month. HR have said that they do not think this situation is causing me more stress.
JACUSTOMER-jndfe19i- : I want to quit but the union said that my employer would be pleased if I did so as it would be a problem less for them. He said it is extremely costly to pursue a constructive dismissal claim. I have recently divorced and been to court with my ex and as my work colleagues know this they could say this has exasperated my stress and depression, but this is not so.
JACUSTOMER-jndfe19i- : This is so ongoing. 2 grievances, the first appealed, nothing done, the second heard 2 weeks ago after 6 months. My employer not having my complaint on the day but they had the letter from me sent to chief exec asking that he help me to return to work and sort the grievances sent in October. And now the overpayment. I am stuck between a rock and a hard place. Can you give me some advice on what I can do. It will be extremely difficult to an employer that has treated me really badly for almost a year. I loved my job before we were tuped over from Haringey council and I probably would have stayed there for another 10 years until I retire. Kind regards yvonne
JACUSTOMER-jndfe19i- :

Can I ask if you have received my last correspondence. Thanks Yvonne

JACUSTOMER-jndfe19i- :

Ben, can you just look at my last corresponsdence, then I will rate you.

JACUSTOMER-jndfe19i- :

I will look forward to hearing from you.

JACUSTOMER-jndfe19i- :

Many thanks Yvonne

JACUSTOMER-jndfe19i- : You keep asking me for my rating but you have not answered my second query. If you could do that then I will raye you.
JACUSTOMER-jndfe19i- : I look forward to hearing from you. Yvonne
Ben Jones :

Hello, sorry the system had not advised me that you had replied in the 20th, apologies for that. Also I have no control over the emails you are receiving as they are sent automatically by the site so don’t think I am personally pestering you …

Just to be clear what specific questions would you like me to deal with now so I can direct my advice more appropriately?

JACUSTOMER-jndfe19i- : Hi Ben, yes there was a lot of confusion for me, but never mind.
JACUSTOMER-jndfe19i- : Just to update you. I sent copies of my bank statemen, I told my employer that I did this under duress. OH have said I am fit for work when my 2nd grievance and the overpayment have been resolved.
JACUSTOMER-jndfe19i- : I want to know if I resigned if I would have a case for constructive dismissal following 2 grievances, the first one I said I was unhappy with outcome but it was not taken further. The second just heard 2 weeks ago after waiting 6 months. Employer did not have a copy of my grievance I had submitted in august. Now overpayment, where HR sent a letter to my union saying they could not take my word for it that I was having financial difficulty and that HR could not see that this was causing me stress. Even though I have been off work for 6 months for stress, depression and increased angina attacks.OH have said I am fit for work once theses issues are resolved. I have been signed off work for a further month by my GP.
JACUSTOMER-jndfe19i- : I was tuped over to my present employer almost avyear and a half ago having worked there for almost 5 years I have had no previous problems before they took over, now it's one thing after another. I will find it extremely difficult to work in my role as a sales advisor selling membership and promoting the company when I do not feel supported by them and they have treated me very badly. I could have worked there happily for the next ten years but I cannot see that happening now.
JACUSTOMER-jndfe19i- : Sorry for the ramblings once again. Please let me have your expert advice and let me know what I need to do from here. Many thanks, Yvonne
Ben Jones :

Hello Yvonne, when it comes to potential constructive dismissal it would occur when the following two elements are present:

  • Serious breach of contract by the employer; and
  • An acceptance of that breach by the employee, who in turn treats the contract of employment as at an end. The employee must act in response to the breach and must not delay any action too long.

A common breach by the employer occurs when it, or its employees, have broken the implied contractual term of trust and confidence. The conduct relied on could be a single act, or a series of less serious acts over a period of time, which together could be treated as serious enough (usually culminating in the 'last straw' scenario).

The affected employee would initially be expected to raise a formal grievance in order to officially bring their concerns to the employer's attention and give them an opportunity to try and resolve them. If the issues are so bad that the employee can't even face raising a grievance and going through the process, or if a grievance has been raised but has been unsuccessful, then they can consider resigning straight away.

If resignation appears to be the only option, it must be done without unreasonable delay so as not to give an impression that the employer's breach had been accepted. Any resignation would normally be with immediate effect and without providing any notice period. It is advisable to resign in writing, stating the reasons for the resignation and that this is being treated as constructive dismissal.

Following the resignation, the option of pursuing a claim for constructive dismissal exists. This is only available to employees who have at least 2 years' continuous service. There is a time limit of 3 months from the date of resignation to submit a claim in the employment tribunal.

An alternative way out is to approach the employer on a 'without prejudice' basis (i.e. off the record) to try and discuss the possibility of leaving under a settlement agreement. Under a settlement agreement, the employee gets compensated for leaving the company and in return promises not to make any claims against the employer in the future. It is essentially a clean break, although the employer does not have to agree to it so it will be subject to negotiation. In any event, there is nothing to lose by raising this possibility with them because you cannot be treated detrimentally for suggesting it and it would not be used against you.

Just to make a final, yet important point, that constructive dismissal can be a difficult claim to win as the burden of proof is entirely on the employee to show the required elements of a claim were present. Therefore, it should only be used as a last resort.