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My sensible recommendation was talk to a lawyer in the morning but it would probably be a bit less stressful to get some advice.
My wife was promoted in January. Under the pay structure this would have meant a pay cut as she would have lost a skills bonus at senior level. Obviously that was madness so she declined the promotion until pay was sorted. This was done by continuing the bonus. This was agreed verbally, was on the internal HR system and has been paid without question for the intervening months.
Roll on this afternoon where HR have told her that she is being overpaid and shouldn't get the bonus. This would mean she has more responsibility but less money than in the level below. But to make matters worse they would like to claw the extra money back and come to an arrangement as to how to do this.
My wife firmly declined that idea. And that is where we are left as.
Any ideas? It feels illegal, maybe constructive dismissal, but ianal. it's definitely not well thought through. I don't know if demotion is an option immediately. No one else internal would now pick up the role as it would mean they end up in the same situation. It's a very large organisation.
I suggested going off sick for 6 months as a starting point to think about it. Forgot to mention weeing in shoes, and I don't have any Bombers (do we still do that 😉 )
It's a bit niche with the hot skills bonus so not much when I Google?
dont go down the constructive dismissal route - the burden of proof is on her and all he risk is with her- use the internal grievance procedure and map out the case along with any supporting documentation.
Any ideas? It feels illegal, maybe constructive dismissal, but ianal. it’s definitely not well thought through. I don’t know if demotion is an option immediately. No one else internal would now pick up the role as it would mean they end up in the same situation. It’s a very large organisation.
Take the promotion even if it means less money.
Then delegate the tasks. (use power and authority in her newly promoted position).
If someone complaints about being delegated with the tasks, then ask the person to offer assistance or alternative solution, otherwise they can have (swap) the job.
I'd be immediately asking for evidence of "was on the internal HR system" through a Subject Access Request or whatever they're called, and then going down the customs and practice route.
Having said that I'm not even close to being suitably qualified to answer the question.
Need to speak to who ever agreed the verbal arrangement and see if there is any evidence anywhere. 11 months later this is a bit naughty, but it needs clearing up. I wouldn't be paying back when it was 'agreed'. May need a solicitor.
I don't do any verbal agreements at work these days, I want written confirmation. We've just been 'robbed' of £200k salary budget because of some 'unwritten' agreement by some managers - no proof anywhere !
IF she was wrongly overpaid, they can recover it and will agree sensible timescale to do so.
IF she can show she was not paid the bonus by accident (email, witness statement from the other party, records from HR system, emails internally about it between the “bosses” which are technically acccessible via subject access request) then she’ll not have to repay it BUT often bonuses are “discretionary” which means the company can decide on a whim to scrap the bonus with little or no consultation on notice. She only has to show that on the balance of probability it was agreed - the delay in accepting the post followed by many months of payments when some resolution was obviously achieved MAY be enough to tip the scales in her favour but that wouldn’t necessarily convince someone that it was an indefinite arrangement rather than a transitionary or discretionary one. If that went to court that would likely depend on the credibility and reliability of the witnesses. Does she think her employers would make good liars?
Constructive dismissal is very hard, nigh impossible. And to have a chance you pretty well have to resign and walk out - that's what it means, that you were put in a position where you had no option. Pay stops while you construct your case, and frankly your case isn't that remarkable. Sounds more like they've screwed up in 'agreeing' a bonus that that shouldn't have and are now trying to wiggle out of.
And sadly, unless some sort of record of the bonus being agreed then it'll be hard to claim a verbal agreement that the other side denies. HR access request might be the route to that, but they have some time to respond to one of them (a month standard unless it's complex in which case they can have 3mo)
IANAL but I'd be inclined to argue that they knew it was being paid and did so willingly as per your earlier agreement, you can now agree to cease it (new agreement) but in return they drop any repayment request.
And then restart the discussion about the promotion or not, and the pay implications, but this time write it down.
Silly question, had she actually said to them "that skills bonus is correct, it was negotiated even though it wouldn't normally be paid for that role"? And what did they say?
There's a good chance they're just doing a reviews of payroll and have spotted someone who's been receiving a bonus that their role isn't eligible for and so they've assumed it was left in place by mistake when she moved to the new role.
Do you have any witnesses, and does the historical payment not demonstrate precedence? I wonder if that counts in CD case? I have my own issue of demotion documented elsewhere, and was introduced to a Customer yesterday as “one of the company most senior account directors”. It’s not been formalised, no conversations with HR and I have a different job title, role and haven’t managed an account based role for two years. It very much feels to me that a CD case is so loaded with difficulty it’s in the employers favour to take advantage of.
Public Sector?
Yeah, it's not clear whether this is just some regular HR auditing has uncovered the bonus payment at a grade that should be ineligible and that's automatically triggered a standard internal process to recover it or if they've already done some further investigating and either no one has admitted to the verbal agreement or they've decided that agreement was unauthorised and therefore invalid - for their first communication to be be demanding the money back I'd hope it was a case of standard processes being followed without investigating if any special circumstances applied (which would be a lot easier dealing with than the other possibilities).
I just reread my post from last night and it's too negative. Not the bit about CD, that's really hard. But rolling over and agreeing to lose the bonus in return for not paying back. That might be an OK outcome (and then restart negotiation about the promotion again) but I'd have to be dragged to it.
I'd be going back through diary, outlook, whatever for meetings and anything from that time related to the promotion, so even if you can't provide 'minutes' you can point to the discussions you had, and who you had them with. And then get them to confirm what was agreed at the time - will they brazenly deny that it was agreed, when pushed on it?
I might even be tempted to say that I'm looking back through my notebooks to see whether there's anything I wrote down at the time. I keep a day book for this reason, everything is noted even if it's just a dated entry 'Meeting with Bob about holiday entitlement'. Will they deny it if there's a chance you're going to pull out a notebook with your version in?
Having got advice, you were correct about CD. At this point she is taking it through the internal process "having sought professional legal advice".
Even if the pay issue is sorted there are some long term issues around trust and integrity but we'll tackle that later.