Not receiving an expected pay rise from your employer, can be frustrating and upsetting. However, if the reason for refusing to implement the pay rise was because of sick leave, this can feel even more unfair and is potentially unlawful. Read on to find out what do to in these difficult circumstances….
Was The Pay Rise Due?
The starting point is to check your employment contract to see if the pay rise was contractually due, and whether you satisfied the criteria (if any) for the rise. This might sound obvious but pay reviews and pay rises may not be automatic. Whilst some employers may implement yearly cost of living pay rises, others are entirely discretionary and/or based on specific performance markers and other criteria. This means there may not be an automatic right to payment.
If, having checked your contractual paperwork, and work record (performance against criteria), you can see that you did not qualify for any pay rise, then unfortunately, payment is unlikely to be made.
The Pay Rise Was Due & The Employer Did Refuse To Pay
If, having checked your contractual paperwork, and your work record, you can see that you did qualify for a pay rise, and the employer is unreasonably refusing to pay it, simply because you are off sick, then you may need to consider further steps. These are set out below.
Informal Discussion
The first step to consider is an informal discussion with your Line Manager, or HR to try and resolve the situation. It might be that there is misunderstanding that can be resolved through informally talking it over. Please ensure you keep a written record of all your communications so if matters require further escalation, you can show you attempted to resolve on an informal basis.
Formal Grievance
The next step (if informal resolution is not successful) is to raise a Formal Grievance. Your employer should have a grievance procedure and where possible, you should ensure you follow the procedure. If you cannot obtain a copy of the employer’s grievance procedure, aim to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures. The Code can be viewed by visiting the ACAS website at https://www.acas.org.uk/acas-code-of-practice-on-disciplinary-and-grievance-procedures/html.
In brief, your obligation will be to raise your concerns formally and without delay. Your grievance should be set out in writing and clearly explain the nature of your concern. Your employer should arrange to meet with you to discuss your Formal Grievance and through this process you may manage to resolve the matter to your satisfaction. If that happens, you will not need to consider further steps. However, if the matter remains unresolved, you may wish to consider ACAS Early Conciliation and potential claims in the Employment Tribunal.
ACAS Early Conciliation
Only if you are still unable to resolve matters above, should you consider commencing ACAS Early Conciliation. ACAS Early Conciliation is a mandatory process for any employee (Claimant) who wishes to consider issuing proceedings in the Employment Tribunal. The early conciliation process can last up to 12 weeks. During this period, the parties can speak on a without prejudice basis about trying to resolve the dispute. A discussion may arise (for example) that you would be prepared to waive your right to legal action, if a monetary offer was forthcoming.
Employment Tribunal Claims?
If following all the above measures you are still no closer to resolving your pay concerns, you might wish to consider potential claims Employment Tribunal claims. The nature of the claims you seek to bring will depend entirely on the circumstances of the case. However, the following may be possible:
Breach of Contract. If you can demonstrate that your pay rise was contractually due and your employer has acted in breach of contract by failing to pay, you may issue a claim of this nature. Please note that you must take specialist advice as to where this claim should be lodged (i.e., High Court, County Court or Employment Tribunal). Factors to be considered will be the value of the claim and whether the employment is continuing. If you do pursue a claim in the Employment Tribunal, you must do so within 3 months, less 1 day from the termination of the employment.
Unlawful Deduction from Wages. If you can demonstrate that not receiving the pay rise meant you did not receive your properly payable wages, then you may issue a claim that failing to pay it was an unlawful deduction from your wages, contrary to Section 13 of the Employment Rights Act 1996. If you pursue this claim in the Employment Tribunal, you must do so within 3 months, less 1 day from the date of the deduction.
Discrimination. If you can demonstrate that the pay rise was due (either through operation of the contract or it being properly payable wages), and the reason for non-payment was simply because you were off sick, this might well give rise to a further claim for discrimination. To assess the possibility of a claim of this nature, you will need to identify if you suffer from any disabilities and if disability was the reason / connected to the sick leave. If the answer to both questions is yes, you could consider claims for disability discrimination, including but not limited to discrimination arising from disability and harassment related to disability. Similarly, if the reason for the sick leave was pregnancy related illness, you could consider a claim for pregnancy discrimination. If you pursue these types of claims in the Employment Tribunal, you must do so within 3 months, less 1 day from the date of the act of discrimination complained of.
Lincs Law Employment Solicitors Can Help You
Although we hope information and guidance on our website is helpful, it is no substitute for legal advice about your specific situation. Pay rise claims are tricky – certainly if there is an element discrimination to be considered. For more information, call us for a free, no obligation, telephone enquiry on 01522 440512, complete an online enquiry form or visit our website for more information, at www.lincslaw.co.uk
Alternatively, for more information about the Employment Tribunal and how to make a claim, please visit our website at https://lincslaw.co.uk/services/employees/employment-tribunal-claims/.
Sophie Goodwill
Specialist Employment Law Solicitor
Lincs Law Employment Solicitors, Lincoln
Tags: Employer Refusing Pay Rise Employment Law Advice Pay Rise