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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 74388
Experience:  Qualified Solicitor
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I have been furloughed by my employer for the last couple of

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Hi there, I have been furloughed by my employer for the last couple of months. I feel as though they have under paid me so I asked them to explain how they were working out the furlough payments. I understand they have to pay the wage first and then claim back afterwards, however they are claiming they have a choice in how they pay us. They seem to think they can choose to pay us 80% of our contracted hours instead of 80% of our regular hours. As a chef we would never do our contracted hours, we would always do overtime and I have tried explaining this to the company that I thought it was meant to be 80% of my regular pay not 80% of contracted pay which is a lot less. Ive been in contact with the HR department and they are still defending their choice to do this. My question is, do they have a choice to do this or are they breaking the law by doing this because I know its against the government guidelines but they aren't taking any notice as they are such a big company.
JA: Have you discussed this wage-and-hour issue with a manager or HR? Or with a lawyer?
Customer: Ive discussed it with the manager and HR department
JA: What is your employment status? Are you an employee, freelancer, consultant or contractor? Do you belong to a union?
Customer: Im an employee
JA: Anything else you want the Lawyer to know before I connect you?
Customer: No that's everything thank you

Hello, I’m Ben, a UK lawyer and will be dealing with your case today. I may also need to ask some questions to determine the legal position.

How many hours do you work on average? and how long have you worked for this employer?

Customer: replied 1 year ago.
Im contracted for 40 hours a week but we normally do on average 46 hours a week. I have been with them for a year and a half now

Thank you. Leave it with me for now, although please note it is extremely busy at present due to the ongoing situation so there may be a delay in replying, but I will get back to you at some point today. Please do not reply in the meantime. Many thanks

Many thanks for your patience. When the employer calculated the pay which they use as reference for the furlough payments, the rules state the following:

The amount you should use when calculating 80% of your employees’ wages is regular payments you are obliged to make, including:

· regular wages you pay to employees

· non-discretionary payments for hours worked, including overtime

Non discretionary overtime is basically any overtime where your employer has no choice on whether you get paid for it – i.e. it is guaranteed that you will get overtime pay by doing it. On that basis, you should indeed have these included as per the official rules of the scheme.

Reference here:

https://www.gov.uk/guidance/work-out-80-of-your-employees-wages-to-claim-through-the-coronavirus-job-retention-scheme#include

Does this answer your query?

Customer: replied 1 year ago.
I have bought these points to the attention of my employer however they think they don't have to include overtime when calculating it. Just before we were furloughed we received a letter from the company explaining we need to sign this document to make changes to our contracts and it states in there that we will get 80% of our usual pay not our contracted hours. But they've decided to go against what the letter has said. Ive provided a screen shot of this letter and the response I received when pointing this out.

So it appears they are simply saying that it protects the business if they just stick to one calculation and do not include all payments you are entitled to, which is a completely incorrect way to go about it.

You may have to contact HMRC now to discuss further and see if they can get involved:

https://www.gov.uk/government/organisations/hm-revenue-customs/contact/get-help-with-the-coronavirus-job-retention-scheme

Does this clarify things a bit more for you?

Customer: replied 1 year ago.
Okay that's brilliant ill contact HMRC tomorrow and hopefully I will get it resolved. Thank you for your time and insight into the matter.

All the best

Customer: replied 1 year ago.
Hi Ben, I’ve been in contact with HMRC and they’ve advices me that my employer will receive a grant for 80% of my regular wages but as you know I’m not receiving 80% of my regular wages so it’s making me think where that money is going. Do you think I’ve got a case to take this further? As HMRC have told me to get back in contact with a lawyer and they won’t get involved in a dispute between employer and employee.

It would depend on what they are actually claiming for and if they have included the overtime in the claim. Obviously, if they are claiming for that extra amount but are not paying you for it, then that is unlawful and fraudulent. That would have to be challenged in he Employment Tribunal by you where you make a claim for the missing amount.

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