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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 49858
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I used to work shifts, and received a 16% allowance for doing

Customer Question

I used to work shifts, and received a 16% allowance for doing so. I stopped working shifts and moved to 9-5 in about 2009 but I continued to receive the shift allowance.

The company has now stopped the payments and investigating me for potential gross misconduct or breach on contract.

My contract simply states I will receive 16% shift allowance but does not go into detail about what it's for or under what terms it would be withdrawn. The contract also goes on to say my normal hours are 35 per week, between 8am and 8pm Monday to Sunday.

The company say they do not have a copy of my contract and asked me to provide it. What should I do?
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is Ben and it is my pleasure to assist you with your question today. have you a copy of you contract

JACUSTOMER-rqt3kijs- : Hi Ben. Yes I do.
Ben Jones :

ok that's fine just checking leave it with me I need to look up a few things and then get my advice ready. I will post back on here when done there is no need to wait and you will receive an email when I have responded.

JACUSTOMER-rqt3kijs- : Ok thanks. I can send you a copy of the contract if that helps.
Ben Jones :

if I need it that would be ok thank you I will just go through a few thing first and get back ASAP.

JACUSTOMER-rqt3kijs- : Ok no problem. I marked it as urgent but I don't really need to knows position until Monday morning. Thanks for your help.
Ben Jones :

Can I also check - why are they accusing you of misconduct - did you have to submit any claims for the shift allowance or was it the employer who continued to pay you this allowance and you simply did not question it?

JACUSTOMER-rqt3kijs- : They haven't said misconduct exactly, but off the record they have told me three options are 1) stop the payments and that's it, 2) stop the payments and I repay, 3) dismissed or asked to leave.
JACUSTOMER-rqt3kijs- : i never had to claim the money, it was paid automatically and detailed on my pay slip. I guess their angle is that I knew I didn't do shifts anymore, and I knew I was still getting the money so I should have notified someone.
Ben Jones :

Did you ever query these payments after stopping shift work?

JACUSTOMER-rqt3kijs- : No I never questioned them. I moved to another part of the business after I stopped shift work and was asked to sign a new contract. It's the new contract that says I would receive 16% shift allowance with no detail behind it. So basically the contract was already out of date in terms of my shift arrangements when I signed it.
Ben Jones :

It is somewhat unreasonable to be accusing you of misconduct and breach of contract when it is not you that requested these payments and it was not your fault that they continued to be paid. This is an error on the employer’s part and it would have been down to them to ensure you are receiving the correct pay – legally there is no obligation on you to have made them aware of the error, assuming you were not actually submitting false claims for that money, such as if you had to fill out timesheets and included shift pay when you should not have been claiming it. As such, the allegations against you are unreasonable and it is unlikely that a dismissal would be considered legally fair in these circumstances.

The issue really is whether they can now try to recover these payments by claiming they were overpayments. The law says that 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.

However, an employee may be able to use the legal defence of ‘estoppel’ to resist an employer's recovery of an overpayment. One of the main cases dealing with this is that of County Council of Avon v Howlett. The employee was a teacher who was paid more sick pay than he was entitled to. The teacher queried the overpayments with the employer but was assured they were correct. By the time the Council had realised their mistake, the teacher had spent most of that money. The Court of Appeal held that the defence of estoppel prevented the employer from recovering the whole sum of the overpayment.

The way estoppel operates is that if the following conditions are satisfied, then an employee should be able to use it as a defence to resist the recovery of an earlier overpayment:

  • The overpayments were made due to an error by the employer
  • The employee genuinely believed they were entitled to the money, or did not even realise that they were being overpaid
  • The employee has since 'changed their position', meaning they have spent the money in question. However, this does not mean just spending it on usual items of expenditure, such as bills, everyday spending, etc – you must have gone out of your way and changed your position, such as making additional purchases which you would not have done had you not received that money.

So whilst there is nothing stopping an employer from pursuing a claim to recover an overpayment, if the above conditions are satisfied then an employee could raise the defence of 'estoppel' and prevent the claim for proceeding any further.

A lot would also depend on what your contract says – for example if this was specifically defined as a shift allowance, which was obviously only payable if you were doing shift work, then it is likely that you should not have been receiving these payments if you were no longer doing shift work. So the employer could have a genuine and valid reason to try and reclaim these based on the above. However, dismissal would be a harsh outcome.

JACUSTOMER-rqt3kijs- : Can I send you the contract and see what you think about the wording? I'm trying to make sure I don't get dismissed initially. Would there be any grounds for dismissal at all given it wasn't me claiming the money?
Ben Jones :

Dismissal would be difficult to justify - in the circumstances it is not a matter of fraud or you intentionally claiming the money in question

Ben Jones :

If you can just attach the relevant part I can take a look

JACUSTOMER-rqt3kijs- : Ok silly question but how do I add an attachment?
Ben Jones :

there should be a paperclip icon on the toolbar

JACUSTOMER-rqt3kijs- :

Contract of employment
Full Size Image

JACUSTOMER-rqt3kijs- :

OK i think thats attached. I appreciate it's quite a big document. I'm concerned about the code of conduct section. No reference to specific rules around the shift allowance though.

JACUSTOMER-rqt3kijs- :

but the first two pages are a letter i received before the t&c were offered specifically about the shift allowance.

JACUSTOMER-rqt3kijs- :

because of the size of the doc, i'm happy to pay more than originally agreed if thats possible

Ben Jones :

Hi, thanks for the document. I have checked it and the only reference that would be relevant is at the start, which says that you retain your current shift allowance on the assumption your shift pattern does not change.

So there would be an assumption that this shift allowance was only payable if you were doing shifts (hence why it was specifically referred to as a shift allowance) and if you retained your existing shift pattern. Therefore, if you changed shift patterns or stopped doing shifts altogether, the employer could argue that this allowance should no longer be payable to you if these circumstances changed. Saying that, it is their responsibility to ensure that you are being paid the correct amount and you are not expected to scrutinise every month’s pay slip to ensure that you are being paid what you should be receiving and to basically do the job that their payroll department should be doing. So to accuse you of any kind of misconduct in the circumstances is going to be difficult and this is in fact their error. As mentioned, as long as you had not been making false declarations that had resulted in you being paid this money, this should not be dealt with as a misconduct issue.

It is, however, a potential overpayment, which they could seek to recover. This is allowed not only through your contract but also legally under the Employment Rights Act 1996. It means they could seek to recover these overpayments directly from your wages by making the necessary deductions from there. They should not leave you without any pay so the deductions they make need to be reasonable and spread over a period of time. Whether you can prevent these from happening would largely depend on whether you can show you meet the criteria for estoppel as mentioned earlier in my response from yesterday.

JACUSTOMER-rqt3kijs- : Ok so I don't need to worry about loosing my job?
JACUSTOMER-rqt3kijs- : also, should I give them a copy of the contract? They claim they don't have a copy and I don't want to make my position worse by giving them a copy.
Ben Jones :

Well, nothing is going to prevent the employer from dismissing you if they really wanted to, it is just that you can challenge it if necessary, so I can't guarantee that they won't actually go ahead and dismiss. If you have a copy of your contract and the employer knows this then you would be best advised to give them a copy because it would certainly raise suspicion and it can also amount to a failure to follow a reasonable managerial instruction

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? Thanks