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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?
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.
Does this answer your query?
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:
Does this clarify things a bit more for you?
All the best
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.