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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 50475
Experience:  Qualified Solicitor
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Since January 2017 my employer has capped my salary claiming

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Since January 2017 my employer has capped my salary claiming that I was earning more than 125% of my salary band. I have since found out that I was never earning this amount and only 105% of salary band. Is this illegal for the employer to lie about this? Is it fraudulent or a breach of contract?

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today.

How long have you worked there for?

Customer: replied 12 days ago.
10 years
Customer: replied 12 days ago.
Ben I do not want to take a call right now I just need to know whether I am dealing with a legal issue with my employer and then seek legal advice. Also, it is an open plan office and unable to get somewhere private to talk.

OK thank you for your response. Leave it with me for now and I will review the relevant information and laws and will get back to you as soon as I can. Please do not respond to this message as it will just push your question to the back of the queue and you may experience unnecessary delays. Thank you

Hi there, just one more query before I answer - is there anything in your contract guaranteeing you a pay rise?

Customer: replied 12 days ago.
I will check my terms and conditions

ok thanks

Hi there, any luck with the contractual terms over this?

Customer: replied 5 days ago.
As requested

Thank you. What the employer has done is not illegal as such, but it can amount to a breach of trust and confidence. The key here is that you do not have an automatic right to a pay increase under contract so whatever the reasons, they could have capped your pay if they wanted to. They have decided to use incorrect reasons for doing so, but regardless of whether these reasons were true or not, there was no guarantee of your pay going up.

If you are going to treat this as a breach of trust and confidence, then apart from a formal grievance, the only other way to deal with it would be to resign and claim constructive dismissal. Whether you want to go that far is up to you but that is how such issues would be dealt with under employment law.

It is worth mentioning that there is a possible alternative solution, where the employer is approached on a 'without prejudice' basis (i.e. off the record) to try and discuss the possibility of leaving under a settlement agreement. Under such an agreement, the employee gets compensated for leaving the company with no fuss and in return promises not to make any claims against the employer in the future. It is essentially a clean break, where both parties move on without the need for going to tribunal. However, it is an entirely voluntary process and the employer does not have to participate in such negotiations or agree to anything. It just means that these discussions cannot be brought up in any subsequent tribunal claim and prejudice either party. So there is nothing to lose by raising this possibility with them as the worst outcome is they say no, whereas if successful it can mean being allowed to leave in accordance with any pre-agreed terms, such as with compensation and an agreed reference.

Please take a quick second to leave a positive rating for the service so far by selecting 3, 4 or 5 stars above. I can continue answering follow up questions and in particular can also discuss the steps you need to follow if you were to claim. There is no extra cost for this - leaving your rating now will not close the question and means we can still continue this discussion. Thank you

Ben Jones and 2 other Law Specialists are ready to help you

Thank you. Before constructive dismissal is contemplated, it is recommended that a formal grievance is raised in order to officially bring the concerns to the employer's attention and give them an opportunity to try and resolve them.

If resignation appears to be the only option going forward, it must be done in response to the alleged breaches (i.e. without unreasonable delay after they have occurred). Whilst not legally required, a resignation would normally be with immediate effect and without serving any notice period. It is also 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 with the employer. There is a time limit of 3 months from the date of termination of employment to submit a claim in the employment tribunal.

Before a person can make a claim in the employment tribunal, they would be required to participate in mandatory early conciliation through the Advisory Conciliation and Arbitration Service (ACAS).

The purpose of this process is to allow ACAS to mediate between the claimant and respondent to agree on an out of court settlement in order to avoid the need for legal action in tribunal. The respondent does not have to engage in these discussions, or if they do and the talks are unsuccessful, the claimant will be issued with a certificate allowing them to make a claim.

However, if a settlement is reached, the claimant would agree not to proceed with the claim in return for the agreed financial settlement. Other terms can also be agreed as part of the settlement, such as an agreed reference.

To initiate the conciliation procedure ACAS can be contacted online by filling in the following form (https://ec.acas.org.uk/Submission/SingleClaimantPage), or by phone on 0300(###) ###-####

If the conciliation process was not successful and you then wanted to make a formal claim in tribunal, you can do so here:

https://www.employmenttribunals.service.gov.uk/apply