Bonus payment.

[RachelMD]

Actually you do have grounds to get round this legally, via Employment rights act 1996 section 13 and section 14 (s.s.4)

 

Section 13 basically prevents the employer form making unauthorized deductions from your wages which a bonus is classed as a wage.

 

Section 14 (s.s. 4) is as follows:

 

(4)Section 13 does not apply to a deduction from a worker’s wages made by his employer in pursuance of any arrangements which have been established—

 

(a)in accordance with a relevant provision of his contract to the inclusion of which in the contract the worker has signified his agreement or consent in writing, or

 

(b)otherwise with the prior agreement or consent of the worker signified in writing,and under which the employer is to deduct and pay over to a third person amounts notified to the employer by that person as being due to him from the worker, if the deduction is made in accordance with the relevant notification by that person.

 

Which means in order to enforce the term in the letter to you, the law clearly states they would need your written consent to such term being included in the contract. Without it, then making such deduction of your bonus regardless of the letter is a breach of section 13 of the employment rights act 1996 and therefore an unlawful deduction of wages.

 

write a letter explaining the above to them and demand that they repay all bonuses they have unlawfully deducted from your wages, get all other drivers to sign the letter and hand it to management in an informal meeting. Drivers that did give written consent to the new terms for bonus, should not sign your letter, only yourself and the drivers that did not give written confirmation of acceptance to the new term should sign your letter.

I do wish I could agree with you Teaboy, after you so kindly defended my reputation so passionately in the early hours of this morning.

But I don't agree.

 

Section 14 (s.s. 4) is as follows:

 

(4)Section 13 does not apply to a deduction from a worker’s wages made by his employer in pursuance of any arrangements which have been established—

 

(a)in accordance with a relevant provision of his contract to the inclusion of which in the contract the worker has signified his agreement or consent in writing, or

 

(b)otherwise with the prior agreement or consent of the worker signified in writing, and under which the employer is to deduct and pay over to a third person amounts notified to the employer by that person as being due to him from the worker, if the deduction is made in accordance with the relevant notification by that person.

 

 

 

 

 

The and is crucial here. This is a provision where the EE is making a deduction for the purpose of paying that sum over to a third party.

 

By your reasoning, Sec.14(4)(a)and(b) would contradict Sec.13(2)(a)and(b).

An Act of Parliament wouldn't do that. They have very clever people, even cleverer than us, cleverer even than SarEl, reading through this stuff and making sure it's right.

 

The large print giveth, and the small print taketh away. - Tom Waits.

Edited May 25, 2011 by RachelMD

[RachelMD]

Hi,

 

I like the brainstorming session...

 

Indeed, bonuses may be considered as part of the wages 'packet'...

 

In accordance with ss 13 to 27 of ERA 1996... During the course of employment the employer can ONLY make defined deductions from a 'worker's' wages...

 

- Any deduction to which the worker has previously signified in writing his agreement or consent prior to it being made (ERA 1996, s. 13(1)(b)).

 

There are special provisions, but they apply in the retail industry...

 

Nah. Sorry, but today we seem to be reading the ERA and interpreting it so it says what we want it to say. Pay close attention to words like and and or.

 

Part II Protection of wages

 

Deductions by employer

 

13 Right not to suffer unauthorised deductions

 

(1) An employer shall not make a deduction from wages of a worker employed by him unless—

(a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or

(b) the worker has previously signified in writing his agreement or consent to the making of the deduction.

(2) In this section “relevant provision”, in relation to a worker’s contract, means a provision of the contract comprised—

(a) in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or

(b) in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.

(3) Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion.

(4) Subsection (3) does not apply in so far as the deficiency is attributable to an error of any description on the part of the employer affecting the computation by him of the gross amount of the wages properly payable by him to the worker on that occasion.

(5) For the purposes of this section a relevant provision of a worker’s contract having effect by virtue of a variation of the contract does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the variation took effect.

(6) For the purposes of this section an agreement or consent signified by a worker does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the agreement or consent was signified.

(7) This section does not affect any other statutory provision by virtue of which a sum payable to a worker by his employer but not constituting “wages” within the meaning of this Part is not to be subject to a deduction at the instance of the employer.

 

 

Sorry to be blunt, but the detail is important

[Bigredbus]

Nah. Sorry, but today we seem to be reading the ERA and interpreting it so it says what we want it to say. Pay close attention to words like and and or.

 

Part II Protection of wages

 

Deductions by employer

 

13 Right not to suffer unauthorised deductions

 

(1) An employer shall not make a deduction from wages of a worker employed by him unless—

(a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or

(b) the worker has previously signified in writing his agreement or consent to the making of the deduction.

(2) In this section “relevant provision”, in relation to a worker’s contract, means a provision of the contract comprised—

(a) in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or

(b) in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.

(3) Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion.

(4) Subsection (3) does not apply in so far as the deficiency is attributable to an error of any description on the part of the employer affecting the computation by him of the gross amount of the wages properly payable by him to the worker on that occasion.

(5) For the purposes of this section a relevant provision of a worker’s contract having effect by virtue of a variation of the contract does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the variation took effect.

(6) For the purposes of this section an agreement or consent signified by a worker does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the agreement or consent was signified.

(7) This section does not affect any other statutory provision by virtue of which a sum payable to a worker by his employer but not constituting “wages” within the meaning of this Part is not to be subject to a deduction at the instance of the employer.

 

 

Sorry to be blunt, but the detail is important

 

LOL...

 

I agree with you 'RachelMD'...

 

Now, can this letter be construed as an alteration of his contract? and form a new provision?

[teaboy2]

I do wish I could agree with you Teaboy, after you so kindly defended my reputation so passionately in the early hours of this morning.

But I don't agree.

 

Section 14 (s.s. 4) is as follows:

 

(4)Section 13 does not apply to a deduction from a worker’s wages made by his employer in pursuance of any arrangements which have been established—

 

(a)in accordance with a relevant provision of his contract to the inclusion of which in the contract the worker has signified his agreement or consent in writing, or

 

(b)otherwise with the prior agreement or consent of the worker signified in writing, and under which the employer is to deduct and pay over to a third person amounts notified to the employer by that person as being due to him from the worker, if the deduction is made in accordance with the relevant notification by that person.

 

 

 

 

 

The and is crucial here. This is a provision where the EE is making a deduction for the purpose of paying that sum over to a third party.

 

By your reasoning, Sec.14(4)(a)and(b) would contradict Sec.13(2)(a)and(b).

An Act of Parliament wouldn't do that. They have very clever people, even cleverer than us, cleverer even than SarEl, reading through this stuff and making sure it's right.

 

The large print giveth, and the small print taketh away. - Tom Waits.

 

I think your missing the point that they have not consented to nor agreed to such term being part of the contract, so to fulfill section 14.4 (b) they need the employees prior agreement or consent in writing, the rest of 14.4(b) applies only when the employee owes money to a 3rd party i.e. attachment of earnings order.

 

So 14.4 (a) is the key part, as they never signified his consent of agreement in writing.

 

The only time they can make a deduction is as follows:

 

1 - in accordance with a relevant provision of his contract to the inclusion of which in the contract the worker has signified his agreement or consent in writing, (key words underlined because for the new term to be included in the contract as a provisional term the employ has to have the employees agreement or consent, which the employee did not give)

or

 

2 - otherwise with the prior agreement or consent of the worker signified in writing,

 

and (in terms of attachment of earnings orders)

 

3 - under which the employer is to deduct and pay over to a third person amounts notified to the employer by that person as being due to him from the worker, if the deduction is made in accordance with the relevant notification by that person. (attachment of earnings order)

 

So 14.4 (b) contains two seperate points for when an employer can deduct from an employees wage, 1st being with prior agreement of written consent from the employee for the employer to deduct from their wage. i.e. employer is struggling with cash flow asks employee to help by taking a lower wage to which the employer will pay back at a later time. And 2 when the employer is instructed by a third party (the court) to deduct and send payment to said third party to which the employee owed money to and the court has issued an attachment of earnings order on the employee.

 

So no it does not contradict section 13.2 (a) and (b) as they employer would need consent or agreement from the employee under section 14.4 (a) for 13.2 (a) and (b) to come into play

 

Basically they have not agreed to the new provision of the contractual term for the bonuses, so section 13.2 does not even come into it as it is not a contractual term.

 

 

If they had agreed of gave written confirmation of acceptance to the employers proposed new contract term in regards to the bonus, then yeah section 13.2 would be a valid defence for the employer. But they haven't agreed to this new provisional term, so its not part of their contract.

 

P.s. no need to thank me for defending your reputation, i would do the same for anyone whom is the victim of an unjustified personal attack.

Edited May 25, 2011 by teaboy2

[RachelMD]

LOL...

 

I agree with you 'RachelMD'...

 

Now, can this letter be construed as an alteration of his contract? and form a new provision?[/quote

Yes, if it's not challenged.

[RachelMD]

I think your missing the point that they have not consented to nor agreed to such term being part of the contract, so to fulfill section 14.4 (b) they need the employees prior agreement or consent in writing, the rest of 14.4(b) applies only when the employee owes money to a 3rd party i.e. attachment of earnings order.

 

So 14.4 (a) is the key part, as they never signified his consent of agreement in writing.

 

The only time they can make a deduction is as follows:

 

1 - in accordance with a relevant provision of his contract to the inclusion of which in the contract the worker has signified his agreement or consent in writing, (key words underlined because for the new term to be included in the contract as a provisional term the employ has to have the employees agreement or consent, which the employee did not give)

or

 

2 - otherwise with the prior agreement or consent of the worker signified in writing,

 

and (in terms of attachment of earnings orders)

 

3 - under which the employer is to deduct and pay over to a third person amounts notified to the employer by that person as being due to him from the worker, if the deduction is made in accordance with the relevant notification by that person. (attachment of earnings order)

 

So 14.4 (b) contains two seperate points for when an employer can deduct from an employees wage, 1st being with prior agreement of written consent from the employee for the employer to deduct from their wage. i.e. employer is struggling with cash flow asks employee to help by taking a lower wage to which the employer will pay back at a later time. And 2 when the employer is instructed by a third party (the court) to deduct and send payment to said third party to which the employee owed money to and the court has issued an attachment of earnings order on the employee.

 

So no it does not contradict section 13.2 (a) and (b) as they employer would need consent or agreement from the employee under section 14.4 (a) for 13.2 (a) and (b) to come into play

 

Basically they have not agreed to the new provision of the contractual term for the bonuses, so section 13.2 does not even come into it as it is not a contractual term.

 

 

If they had agreed of gave written confirmation of acceptance to the employers proposed new contract term in regards to the bonus, then yeah section 13.2 would be a valid defence for the employer. But they haven't agreed to this new provisional term, so its not part of their contract.

 

P.s. no need to thank me for defending your reputation, i would do the same for anyone whom is the victim of an unjustified personal attack.

 

Tomorrow. 'Cos yer giving me a fecking headache. Again.

[honeybee13]

Rachel, sweetie, that's not very ladylike language.

 

Hi guys, HB

[tom a]

Thanks for all the replies so far. It's s bit over my head at the moment but I keep reading with interest.

[RachelMD]

I think your missing the point that they have not consented to nor agreed to such term being part of the contract, so to fulfill section 14.4 (b) they need the employees prior agreement or consent in writing, the rest of 14.4(b) applies only when the employee owes money to a 3rd party i.e. attachment of earnings order.

 

So 14.4 (a) is the key part, as they never signified his consent of agreement in writing.

 

The only time they can make a deduction is as follows:

 

1 - in accordance with a relevant provision of his contract to the inclusion of which in the contract the worker has signified his agreement or consent in writing, (key words underlined because for the new term to be included in the contract as a provisional term the employ has to have the employees agreement or consent, which the employee did not give)

or

 

2 - otherwise with the prior agreement or consent of the worker signified in writing,

 

and (in terms of attachment of earnings orders)

 

3 - under which the employer is to deduct and pay over to a third person amounts notified to the employer by that person as being due to him from the worker, if the deduction is made in accordance with the relevant notification by that person. (attachment of earnings order)

 

So 14.4 (b) contains two seperate points for when an employer can deduct from an employees wage, 1st being with prior agreement of written consent from the employee for the employer to deduct from their wage. i.e. employer is struggling with cash flow asks employee to help by taking a lower wage to which the employer will pay back at a later time. And 2 when the employer is instructed by a third party (the court) to deduct and send payment to said third party to which the employee owed money to and the court has issued an attachment of earnings order on the employee.

 

So no it does not contradict section 13.2 (a) and (b) as they employer would need consent or agreement from the employee under section 14.4 (a) for 13.2 (a) and (b) to come into play

 

Basically they have not agreed to the new provision of the contractual term for the bonuses, so section 13.2 does not even come into it as it is not a contractual term.

 

 

If they had agreed of gave written confirmation of acceptance to the employers proposed new contract term in regards to the bonus, then yeah section 13.2 would be a valid defence for the employer. But they haven't agreed to this new provisional term, so its not part of their contract.

 

P.s. no need to thank me for defending your reputation, i would do the same for anyone whom is the victim of an unjustified personal attack.

 

No. All of Section 14(4) ERA 1996 refers to a situation where an ER makes a deduction from an EE's wages for the purpose of paying over that sum to a third person.

You're choosing to pluck a single paragraph from that subsection and interpret that statement seperately from the rest of the subsection.

If you read from-

 

Here(4) Section 13 does not apply to a deduction from a worker’s wages made by his employer in pursuance of any arrangements which have been established—

(a) in accordance with a relevant provision of his contract to the inclusion of which in the contract the worker has signified his agreement or consent in writing, or

(b) otherwise with the prior agreement or consent of the worker signified in writing,

and under which the employer is to deduct and pay over to a third person amounts notified to the employer by that person as being due to him from the worker, if the deduction is made in accordance with the relevant notification by that person.To here

 

You'll notice there's only one full stop. That's because it's one sentence, making one point.

 

 

Plus, Section 14(4) has nothing to do with attachment of earnings orders. Attachment to earnings orders are enforced by Section 13(1)(a). It is a statutory provision that an ER duduct such money and pay it over to the court.

 

 

The EE has given his consent to the new contractual terms, if he has failed to challenge the unilateral change to the terms within a reasonable period of time. Which the ER could strongly argue, given that over a month has elapsed since issuing the EE with the new term and the EE has not challenged it.

 

It is entirely erroneous to suggest that a new contractual term is only valid if the EE gives their signed agreement. Section 13(2) is the relevant statutory provision for this situation.

[teaboy2]

No. All of Section 14(4) ERA 1996 refers to a situation where an ER makes a deduction from an EE's wages for the purpose of paying over that sum to a third person.

You're choosing to pluck a single paragraph from that subsection and interpret that statement seperately from the rest of the subsection.

If you read from-

 

Here(4) Section 13 does not apply to a deduction from a worker’s wages made by his employer in pursuance of any arrangements which have been established—

(a) in accordance with a relevant provision of his contract to the inclusion of which in the contract the worker has signified his agreement or consent in writing, or

(b) otherwise with the prior agreement or consent of the worker signified in writing,

and under which the employer is to deduct and pay over to a third person amounts notified to the employer by that person as being due to him from the worker, if the deduction is made in accordance with the relevant notification by that person.To here

 

You'll notice there's only one full stop. That's because it's one sentence, making one point.

 

 

Plus, Section 14(4) has nothing to do with attachment of earnings orders. Attachment to earnings orders are enforced by Section 13(1)(a). It is a statutory provision that an ER duduct such money and pay it over to the court.

 

No section 14.3 enforces a court order (attachment of earnings) not section 13.1 section 13 is about the right not to suffer unlawful deductions, section 14 defines what a excepted deduction in law and therefore a lawful deduction is. so section 14 enforces statutory deductions not 13.1 which simply means that employer can not lawfully make deductions unless the deduction is a virtue or statutory provision enforced by section 14.3 and/or relevant provision enforced by section 14.4.

 

The EE has given his consent to the new contractual terms, if he has failed to challenge the unilateral change to the terms within a reasonable period of time. Which the ER could strongly argue, given that over a month has elapsed since issuing the EE with the new term and the EE has not challenged it. Agreed, as i myself stated in a previous post, but the employee is a layman and can argue they did not know that, after all their drivers not lawyers. plus there was no period between notice of change and it being enforced by the employer that am aware off. so if enforced by employer upon notice, without consultation with the employees and/or notice period allowing the employees to consider the changes, then i doubt the employer will have much success at an hearing.

 

It is entirely erroneous to suggest that a new contractual term is only valid if the EE gives their signed agreement i never said signed if i did then i mean consent or written agreement/acceptence. Section 13(2) is the relevant statutory provision for this situation. No section 13.2 only comes into it the employer has compiled with section 14.4 Basic contract Law requires written consent form the other party to an agreement when they want to add or change terms of a current agreement hence why under section 14.4 (a) is says - (a)in accordance with a relevant provision of his contract to the inclusion of which in the contract the worker has signified his agreement or consent in writing, - You can not add or change terms of a contract without consent

 

Just because it is one sentence it doesn't mean it can not contain two points. there is two points seperated by the comma and key word 'and' along with paragraph spacing between the comma and the word 'and' (which implies a secondary requirement is needed along with 14.4 (b) where said requirement is mention directly after the word 'and' - you pointed out previously as 'and' being a key word, therefore needing the employees consent to hand money over to a third party whom the employee owes a debt too

 

The meaning of the 'And' is this - along or together with.

 

So lets reword 14.4b to show the meaning of the word 'and'

 

"b)otherwise with the prior agreement or consent of the worker signified in writing,

 

along/together with under which the employer is to deduct and pay over to a third person amounts notified to the employer by that person as being due to him from the worker, if the deduction is made in accordance with the relevant notification by that person."

 

Notice how the words are set out as follows in the legalization:

 

(4)Section 13 does not apply to a deduction from a worker’s wages made by his employer in pursuance of any arrangements which have been established—

 

(a)in accordance with a relevant provision of his contract to the inclusion of which in the contract the worker has signified his agreement or consent in writing, or

 

(b)otherwise with the prior agreement or consent of the worker signified in writing,

 

and under which the employer is to deduct and pay over to a third person amounts notified to the employer by that person as being due to him from the worker, if the deduction is made in accordance with the relevant notification by that person.

Sorry but the fact the last section is separated from section b makes it a separate point. Legislation is not written out in sentences but in list of points which are separated by spacing.

 

As for section 13.1a well sorry but as 14.4 clearly states section 13 does not apply to a deduction from a worker’s wages made by his employer in pursuance of any arrangements which have been established

 

Though in this case they did not agree to or give written acceptance to the term being applied as a provision of their contract therefore such arrangements have not been established. Therefore the employer has not got the employee's permission as per required under 14.4 a and as they have not complied with section 14.4 (excepted deductions) then by making such deductions they will be in breach of section 13.1 Right not to suffer unauthorized deductions..

 

your confusing section 13 as being excepted deductions when its 14 that is excepted deductions

 

besides debate aside, as sidewinder stated earlier - it is likely an unlawful penalty in law. which am inclined to agree with

Edited May 26, 2011 by teaboy2

[RachelMD]

I'm going to leave this now, Teaboy, to the discretion of those who've read the last few posts.

People who frequent the Employment Forum know us both well enough to come to their own conclusions.

[tom a]

Thanks guys for the input.Had an informal chat with my manager this morning and I stated employment law to him and I think it's an unlawful deduction.

He is going to look into it and seemed to be coming down on my side. It's just his bosses we have to convince.

[teaboy2]

I'm going to leave this now, Teaboy, to the discretion of those who've read the last few posts.

People who frequent the Employment Forum know us both well enough to come to their own conclusions.

 

Agreed better left for others to decide. Either way, i'll still buy you drink

 

Well if your ever in Yorkshire i will.... Rachel just don't tell your husband though lol

[RachelMD]

I am in Yorkshire. And I don't have a husband.

[teaboy2]

I am in Yorkshire. And I don't have a husband.

 

Ummm, Well in that case.....

[leedsguy]

Don't do it, 2 people into law, the divorce would be terrible

[teaboy2]

Don't do it, 2 people into law, the divorce would be terrible

 

I better draw up the prenuptial agreement then lol