Introduction
The cases of Laurence, Dottie, and Edgar involve both individual and collective matters. For Laurence, his cases are two – deduction of a two days pay as a result of participation in industrial action and recovery of an overpayment of expenses due to his error when completing an expenses form.
The first case which borders on industrial strikes calls for attention in line with the provisions as set out in the procedures governing official and unofficial strikes.
Official strikes
An official strike is supposed to have the backing of the appropriate trade union to which an employee belongs. In the case involving Laurence, it has to be established whether it was an official strike or not.
Unofficial strikes
An unofficial strike occurs without the trade union’s support because they are against agreed procedures and union rules. If Laurence had participated in an unofficial strike, could the employer have been right to deduct two days’ pay from his salary?
There is no evidence to show that strikes are unjustified simply because they are unofficial. Rather, any group of employees has the right to strike in furtherance of a trade dispute, whether members of such a group are organized within a trade union or not. If a legal penalty for unofficial strikes were to be introduced, such people would have no ultimate sanction in a situation where they feel that they are aggrieved.
From research, it has been established that most strikes; official and unofficial are caused by issues on disputes over wages, allowances, hours, trade union rules, discipline, working with non-unionists, and job demarcation. There are also strikes in sympathy with stoppages of other workers elsewhere and for the reinstatement of discharged and suspended workers.
The case of Laurence
To ascertain whether his employer was right in deducting two days pay from his salary, Laurence should be able to answer the following questions; which are in line with Trade Union and Labour Relations [Conciliation] Act 1992:
- Was there sufficient notice to the employer by the union to which Laurence belongs, of their intention to embark on industrial action?
- If so, was the notice received and acknowledged by his employer?
- Before the industrial action, were the various conciliatory procedures followed in seeking other options to resolve the dispute to avoid the strike followed, including seeking the help of Advisory, Conciliation, and Arbitration Services [ACAS]?
- Is Laurence a member of the trade union that organized the strike?
- How was the strike – a “wildcat strike”? In other words, was it unofficial where were hostile, intimidating, without justification, and without notice?
- Where the majority of the union members in favor of the industrial action before it was embarked upon?
The employer
On the part of the employer, the following questions should be addressed, bearing in mind the rules and regulations as contained in the Employment Act of 2002 and sections 1, 2, and 3 of “Discipline and Grievance at Work” ACAS Handbook:
- Were the cases of the employees properly investigated by management as soon as they were discovered?
- Were the employees involved informed in writing about what they were alleged to have done wrong?
- If the item above was followed, how clear was the written information or notice, assuming the employees were not able to read and understand the language [English] in which the information was written, or still, where English happened to be a second language to them?
- If item [3] above was so, did the employer try to explain the content of what they put in writing to the employees who did not understand the English language?
- Were the employees allowed to hear and to be heard on the information about their via an organized meeting with them, collectively or individually or through their union representative[s]?
- What were the specific amounts involved in each case and was it right to have had the whole amounts deducted once? Or should it have been better deducted instrumentally to avoid putting the employees under unnecessary financial stress?
- How reasonable did the employer consider the disciplinary actions taken against those employees under the circumstances?
- Were they first invited to a meeting where the offenses were discussed and the type of disciplinary action made known to them by the employer before the enforcement, as provided by section 3 of the “Discipline and Grievance at Work”?
- Were the employees given the necessary option to appeal against such a decision by the employer?
- As trade union members, did the employer invite a senior representative or a permanent official of their trade union to discuss the disciplinary action to be taken, to avoid a serious dispute if they consider it an attack on their union functions?
Advice to consider by all parties
Laurence: He should take the option of appealing the action of his employers in deducting a two days pay from his salary for his involvement in the industrial strike.
In doing that, he should get a senior manager who is not involved in the case to hear the appeal or another manager, if possible.
He should be aware that whoever should handle the hearing must be a trusted individual who would be impartial in handling it.
Laurence, Dotie, and Edgar: On the other cases involving penalties on errors and/or negligence by the trio, they can collectively appeal against the deductions. They should request for a meeting with the management to discuss their grievances, collectively and/or individually, and see how a favorable resolution can be achieved without resorting to reporting to the Employment Tribunal.
The reason is that, if they decide to go to the tribunal without trying out the above options, there is no certainty that the cases would eventually be decided in their favor.
However, if after trying these options and the management still fails to provide an acceptable ground for their actions, then their last resort should be to the Employment Tribunal.
The law stipulates that any employee who feels that he or she has suffered an unlawful deduction from wages or been required to make unlawful payments may seek redress by presenting a complaint to an Employment Tribunal.
Laurence, Dottie, and Edgar have the option of seeking redress from an Employment tribunal as they seem to have a good case to present. However, Laurence should be aware that the employer has the right to deduct from his wages for participating in an industrial action depending on the ground of the strike.
Laurence and his colleagues have within three months to make their complaints to the Employment Tribunal, effective from the date on which the payments were due to be paid. If that is not reasonable, the Tribunal will decide which date it considers reasonably practicable.
The employer. The employer should revisit the case by:
- Calling a meeting with the aggrieved employees immediately to look into their grievances individually and collectively. Seek each person’s opinion and take another look at the condition of employment and wages and salary.
- Look at the bulk deductions and consider installment deductions over some time mutually acceptable to all parties [if the deductions are found to be justifiable].
- Explain to them how the deductions came about [in the cases involving Dottie and Edgar]. For instance, why did management
- unilaterally stop paying Dottie’s extra allowance for weekend shifts and why did they reduce her rate pay by One pound per hour without notifying her beforehand?
- In the case of Edgar, management should explain in clear terms what they meant by “shortage of cash in the till” Was it for instance a case of:
The law states that the employer must before receiving any payment from the employee because of shortages or deficiencies.
Let the worker know in writing the full amount that he owes. The worker must not be required to pay more than 10 percent of the gross amount payable on the payday.
A demand for payment can be given or posted to the worker or left at his or her last known address on a payday. [This does not however apply to payments by workers who are receiving their final payment on being disengaged].
Based on this, it is unlawful for the employer here to deduct 15% from Edgar’s salary. The law stipulates that, if an employer goes to court to recover money from an employee because of shortages or deficiencies, the court must ensure that payments do not exceed installments of 10 percent of gross wages.
That period, management should give them support and guidance to attain an acceptable level of productivity or performance.
However, if they fail to meet the expectation of the employer after the stipulated period, then the new wage [in this case lower pay] can be applied, but not until then.
Furthermore, if the reduced wage and stopped shift allowance were a result of distress in the organization, two options can be considered, viz: agree with the worker and implement any change in that regard. Or downsize via redundancy and reduce the workers to a manageable size to keep the business going
Reference
ACAS Handbook [“Discipline and Grievance at Work”] UK Employment Act 2002.
Landau, Zeffert, Wear Solocitors. London [Articles].