Allowances and retentions on transfers

Case ref:1.6/March 04

Case summary

A member who is in a mobile grade was forced to transfer from one office to another whilst off on long term sick. The post he held previously attracted a specialist allowance plus overtime. The new post did not attract the allowance and overtime was not available.

Advice requested

What were the prospects of submitting a claim to the Employment Tribunal for deductions from wages?

Key advice provided by Thompsons

The Thompsons solicitor appreciated that the member and his representative believed there had been unfair treatment. However, in concluding that any case would fail the solicitor said:- 

"For the purposes of a claim of unauthorised deductions from wages under section 13 Employment Rights Act 1996, the Employment Tribunal has to look at the contractual position, what Mr X was entitled to be paid once transferred, not the fairness or otherwise of the way he was treated. As far as I can see, the member was no longer entitled to his specialist allowance and overtime once transferred. An Employment Tribunal is likely to find the claim unfounded and award no compensation at all. There is unlikely to be a significant embarrassment factor in this case."

Legal department comment

The position on this issue as highlighted above confirms that in the contractual position described any claim to an ET will not succeed. However in our view each case should be considered alongside the terms and conditions, and any relevant guidance as provided for in relevant Staff Handbooks or Staff Codes. Where these provide the scope to do so, cases should be pursued via internal grievance and other related procedures.

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