Our Ref: BR4/9/13
17 September 2020
CHAMPIONS REWARD SCHEME, THREE BRIDGES DEPOT – SIEMENS
I previously wrote to you on 28th August 2020 outlining the steps taken up to that point with regards to your union pressing Siemens management to resolve the concerns you and your colleagues had over its Champions Reward Scheme. I also explained that your union would be seeking legal remedies over this matter.
However, further legal advice that I have obtained points out the difficulties in taking forward a feasible case as we had hoped to pursue.
Firstly, with regards to a claim for the unlawful deduction from wages, an overpayment of wages is excluded from such a claim and therefore the employment tribunal would not have jurisdiction to hear the claim.
Secondly, with regards to a claim for a breach of contract, which would need to be brought in the county court as the employment tribunal does not have jurisdiction to hear a claim for breach of contract whilst an employee’s employment is continuing, I have been advised that the contract of employment allows Siemens to recover an overpayment of wages and therefore the county court on that basis would find that there has been no breach of contract. Also, there are different costs implications at the county court as generally the losing party pays the other side’s costs.
There is the equitable principle of “estoppel”, which in limited circumstances enables an employee to have a defence to any recovery of overpaid sums if in good faith changes their position by incurring expenditure which would not have otherwise been incurred. Case law has established that the overpayment is not recoverable if the employee can show that the employer had made a representation that he relied upon to treat the money as their own. Further, that the defence is available to a person whose position has so changed that it would be inequitable in all the circumstances to require him to make restitution, or alternatively to make restitution in full. I wish to stress however that the mere fact that the employee has spent the money, in whole or in part, does not of itself render it inequitable that they should be called upon to repay, because the expenditure might in any event have been incurred by him in the ordinary course of things. As with any equitable principle, each party must come with ‘clean hands’ and any suggestion of the monies paid being done so dishonestly would undermine being able to rely on the equitable principle of estoppel.
Our members will argue that they relied on the rewards paid, it was soon after that they were advised of the mistake and as explained above merely spending the money is not sufficient for the principle of estoppel to apply.
There are only three situations in which our legal advisors envisage that a claim for the unlawful deduction from wages could succeed
Firstly, if the member can show that the principle of estoppel applies to their circumstances.
Secondly, if a member could show that Siemens were deducting more money that they had received (taking into account tax and National Insurance).
Thirdly, if a member could show that they were properly entitled to the Champions Award Payment i.e. there was no valid reason for it to be clawed back.
However, no documentation to show that this is the case has yet emerged.
If a member believes that they can show that the principle of estoppel applies, or that Siemens are deducting more money than they received or that they were properly entitled to the Champion Awards payment they should complete and submit an L2 – Request for Legal Assessment - with supporting documentation so that it can be established whether they have a feasible claim. These L2 forms can be requested by contacting the union’s Freephone helpline on 0800 376 3706.
I am sorry it seems that there are now no legal steps to be taken in this case, but as explained above, the circumstances do not allow for such legal action to be taken. Additionally, it should be noted that trade unions work under very stringent anti-union laws in this country and workers, in turn, face very weak workplace legislation that is slanted in favour of employers. Nevertheless, your union will continue to defend our members at Siemens and elsewhere whenever they face injustice and will take action whenever the circumstances allow.