Probation Service unlawful deduction of wages member guide

Were you appointed, promoted or regraded by the National Probation Service during the period between 1 October and 31 March at any time since the NPS was created in June 2014?

If this applies to you:

1.    You may be on the wrong pay point

2.    You are advised to register a grievance to establish the facts about your pay progression and to seek remedy for any loss of pay. there is a time limit on registering a grievance. Please register your grievance by no later than 5pm on Friday 4 March.

3.    You may also be entitled to bring a claim for unlawful deduction of wages against the Probation Service. If you want UNISON to represent you and act on any potential claim you must respond to your UNISON branch in line with the following advice as soon as possible and no later than 5pm on Friday 4 March.

It has been discovered that the National Probation Service (NPS) failed to apply a critical contractual term which says that staff who were appointed, promoted or regraded during the period between 1 October and 31 March should be granted their first increment on the six-month anniversary of their appointment, promotion or regrading. Staff in this category may have suffered financial loss as a result of the failure of the NPS to apply the increment correctly.

If these circumstances apply to you, UNISON is advising you to register a grievance with the Probation Service and also offering you an opportunity to find out whether you are entitled to bring a claim for unlawful deduction of wages against the Probation Service, which has taken over all the liabilities of the NPS.

Ex-NPS staff who fall into the above category and are not in a trade union can join UNISON if they think that they may be entitled to bring a claim, wish UNISON to take any potential claim forward and want help in registering a grievance. When joining, please give your employer as Probation Service.

What is the contractual clause that the NPS failed to apply?

The contracts of employment of all NPS staff were based upon the former National Negotiating Council (NNC) for the Probation Service Legacy Handbook dated 31 May 2014. These terms continue unchanged into the Probation Service.

The NNC Handbook, which covers staff in pay bands 1-6, sets out the following at Section A/2 Pay and Grading:

The reason for this clause is that the award of an increment requires a new employee, or an employee recently promoted or regraded, to have been in post for 6 months before they are eligible for their first increment.

Staff appointed, promoted or regraded between 1 October and 31 March do not have 6 months service prior to 1 April (the date with effect from which increments are paid to eligible staff each year), so under the terms of the above NNC Handbook clause their first increment becomes due on the 6-month anniversary of their appointment/promotion/regrading.

For example, if you were appointed by the NPS on 1 November 2020, you were not entitled to your first increment on 1 April 2021 but were entitled to get your first increment on 1 May 2021 – 6 months following appointment.

However, UNISON believes that the NPS failed to pay the increment to you on 1 May 2021 and will make you wait until 1 April 2022 to get it. UNISON believes that staff in this position may be one increment behind where they should be in their pay band and that this may constitute an unlawful deduction of wages.

Regrettably, the NPS, and now the Probation Service, dispute the meaning of the above contractual clause. The Probation Service does not accept liability for the losses which may have been suffered by former NPS staff, who were denied their first increment on the 6-month anniversary of their appointment, promotion, or regrading. This is despite clear evidence which indicates that the employer is in breach of contract and liable for any potential claims.

What is a claim for unlawful deduction of wages?

It is unlawful for an employer to deduct any of your wages, unless this is required by law (payment of tax/NI etc), or to recover an overpayment, or you have given permission for the deduction.

NPS staff who were appointed, promoted or regraded during the period between 1 October and 31 March, at any time since 1 June 2014, may have suffered financial loss as a result of not being awarded their first increment on the 6-month anniversary of their appointment, promotion, or regrading. This may have led to some NPS staff being one increment behind where they should be in their pay band. This financial loss may be on-going and may represent an unlawful deduction of wages.

For a claim for unlawful deduction to succeed, the claim must be brought within 3 months less one day of the last deduction. If a claim is successful, the claimant is entitled to 2 years backpay on what is owed. In the case of the claims which UNISON may be able to bring here, any backpay due would be for the period 30 March 2020 to 30 March 2022*. In addition, the employer would be required to pay the right salary going forward.

UNISON would also expect the Probation Service to settle any older historical losses which cannot be recovered in the Employment Tribunal.

*Please note: the government reduced the backpay which an employment tribunal can award to staff suffering an unlawful deduction of wages from 6 years to 2 years in 2015.

Who may be eligible to bring a claim for unlawful deduction of wages against the Probation Service?

To be eligible to bring a claim you must have been appointed, promoted or regraded during the period between 1 October and 31 March. We have provided a calendar here which shows this period shaded in green – see the Resources section below.

The following ex-NPS staff may be eligible to bring claims. Please note: these qualification criteria need to be read in conjunction with section 5 as there are exclusions which apply.

• Ex-NPS staff who were appointed, or regraded, to pay bands 2,3,4,5 and 6 between 1/10/2020 and 31/3/2021.
• Ex-NPS staff who were appointed, or regraded, to pay bands 2,3,4,5 and 6 between 1/10/2019 and 31/3/2020 to a starting pay point in the pay band above the minimum salary point of that pay band*.
• Ex-NPS staff who were appointed/promoted/regraded to the minimum salary point of pay band 5 between 1 October 2014 and 31 March 2015.
• Ex-NPS staff who were appointed/ promoted/ regraded to pay bands 2,3,4 and 6 between 1 October and 31 March at any time prior to 1/4/2018 to a starting pay point in the pay band above the minimum salary point of that pay band*.

*Please note: The practice of appointing to a pay point above the minimum of a pay band was not common in the NPS and would have been the subject of negotiation between the employee and employer prior to them starting in the new role. The exception to this was that, prior to 1 April 2018, to ensure that promotion was financially worthwhile, the new basic salary on promotion was three clear pay points higher than the pay point immediately prior to promotion, which particularly in the case of promotion from pay band 4 to pay band 5 would have accelerated the promoted member of staff above the minimum of the higher pay band.

Who is not eligible to bring a claim for unlawful deduction of wages against the Probation Service?

The following staff are ineligible to bring a claim, because although they may have been appointed/promoted/regraded between 1 October and 31 March and may have suffered historical salary losses, their losses are not on-going and therefore cannot be recovered in the employment tribunal:

• Any ex-NPS staff appointed or regraded to the minimum pay point of their pay band between 1/10/2019 and 31/3/2020
• Any ex-NPS staff in pay band 1, regardless of when they were appointed
• Any ex-NPS staff in pay bands 2,3,4 and 6 who were appointed, promoted, or regraded to the minimum pay point of their pay band prior to 1/4/2018.
• Any ex-NPS staff in pay band 5 who were appointed, promoted, or regraded to the minimum pay point of their pay band after 1/4/2015 and before 1/4/2018.
• Any ex-NPS staff currently at the top of their pay band
• Any ex-NPS staff who work as Approved Premises Residential Workers. This is the result of the recent upgrade from pay band 2 to pay band 3.

Please note: if you are an ex-NPS member of staff who was appointed/promoted/regraded between 1 October and 31 March at any time but are ineligible to bring a claim for unlawful deduction of wages, UNISON strongly advises you to register a grievance with the Probation Service.

Please follow the link for a pro-forma SOP-GRV1 form (Word). Please complete with your personal details, including the date that you were appointed/promoted/regraded and send to your line manager and UNISON branch, with your contact details, as soon as possible and by no later than 4 March 2022.

Are ex-CRC staff eligible to bring a claim for unlawful deduction of wages against the Probation Service as part of this action?

No. When asked by UNISON, most CRCs stated that they had complied with the contractual clause, although more work is being done to verify this. If we find that any CRCs failed to comply with the clause, and if there are claims which can be brought arising from this, UNISON will issue further information. If claims can be brought by ex-CRC members, the Probation Service would be liable for any financial compensation arising.

I think I might be eligible to bring a claim for unlawful deduction of wages, what do I need to do?

If you are an existing member of UNISON who falls into one the eligible categories set out in section 4, and are not covered by any of the exclusions at section 5, and you are interested in seeing whether you have a claim for unlawful deduction of wages, please:

• Register a grievance with the Probation Service using this form (Word). Complete with your personal details, including the date that you were appointed/promoted/regraded and send to your line manager and UNISON branch as soon as possible and by no later than 5pm on 4 March 2022.
• Complete a UNISON case form (Word). Please follow the link for a pro-forma case form. Please complete with your personal details and return to your branch as soon as possible and by no later than 5pm on 4 March.

We will assess your case form to see if you are eligible to join the claim for unlawful deduction of wages. If we believe that you are eligible, the next step will be for UNISON to initiate a claim to the Employment Tribunal on your behalf.

If you are not eligible to join the claim, we can still help you to identify any historic losses you may have suffered and pursue these with the employer separately via the grievance procedure.

Please Note: there is a strict time limit for UNISON to bring claims for unlawful deduction of wages.

For your claims to be accepted by the courts, UNISON needs to register your claim with ACAS by 30 March 2022. Please therefore ensure that you:

• Register your grievance with the Probation Service and
• Return your completed case form to your UNISON branch as soon as possible and by no later than 5pm on Friday 4 March.

UNISON cannot be held responsible for registering your claim if you respond after this date.

Register a grievance even if you are not eligible to bring a claim for unlawful deduction of wages

If you were appointed, promoted or regraded during the period between 1 October and 31 March at any time since June 2014, UNISON strongly advises you to register a grievance with the Probation Service and send a copy to your UNISON branch to ensure that you have registered your interest in this matter. Please make sure that you provide your branch with your contact details.

You are advised to do this even if you are not eligible to bring a claim for unlawful deduction.

As set out above, if UNISON is successful in our claims at the employment tribunal, we will expect the Probation Service to remedy all and any financial losses (including those which we cannot pursue in the employment tribunal) which resulted from its failure to award staff their increment on the 6-month anniversary of the appointment, promotion or regrading.

By registering your grievance, you will be asking the employer to make good any losses owing to you, and which, as a result of the government reducing the back pay recoverable, we cannot recover in the employment tribunal.

Here is the model grievance form (Word).

If you are not already a trade union member in the Probation Service, join UNISON now to find out whether you might have a claim for unlawful deduction of wages, and to get help to register a grievance.

If you are not already a trade union member in the Probation Service and believe that you might be eligible to join this claim, and wish UNISON to act on your behalf, you will first need to join.

Please ensure that you join as soon as possible, as grievances need to be registered, and UNISON case forms returned to UNISON, by no later than 5pm on Friday 4 March.

UNISON has waived our normal 4-week qualifying membership period before you can access legal assistance to allow new joiners to see if they can join the claim immediately.

Even if you are not eligible to join the claim, UNISON can support you in your grievance to establish any historic losses.

When joining, please give your employer as the Probation Service

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