POA Circulars

113 | 01.09.2010

Overpayment of salary, refusal to pay payment plus and other allowances

The NEC, Legal Aid Committee and our legal providers, Thompsons have over the past few months dealt with a number of requests for advice in relation to the above issues.

Applications have been submitted by members who are being asked to repay monies they have received in the past from the Prison Service.  In some cases the members are continuing to receive the money. 

Quite often information has come to light, which means the member was not entitled to be paid the money or the person who authorised the payment did not have the authority to do so.  The Prison Service contends that it is only the Director General or Chief Executive Officer who has this authority.

To resolve problems regarding alleged overpayments NOMS has set up an appeal panel. Staff who believe they have not been overpaid and therefore do not owe any money must utilise the appeal process. Staff should seek guidance and information from their HR department or Governor on the process. We recommend that anyone who is successful on appeal should seek confirmation from the panel, that the payment in issue was made for and on behalf of the Director General or Chief Executive Officer to ensure they don’t encounter any problems in the future.

This does not mean that staff must exhaust the appeal process before seeking legal advice.  

Section 14 of the Employment Rights Act 1996 provides that an employer may deduct an overpayment of wages, therefore in the vast majority of cases there is no legal argument open to the member.    However, members should always be advised that they may submit an application for legal advice and reminded that the time limits for issuing proceedings in an Employment Tribunal for unlawful deductions from wages is three months less one day from the date of the last deduction and for issuing proceedings in the County Court, the time limit is 6 years from the date of the alleged breach. 

In relation to payment plus, PSI 24/2008 is clear that payment will only be made in the following circumstances:

  • To staff a bedwatch
  • To staff a constant observation
  • To staff a Category A escort
  • To staff new accommodation and to cover temporary staff in post vacancies against the targeting figure


Members should be warned against being coerced into working additional hours under payment plus if the work does not fall into one of the above categories, as they are only entitled to receive TOIL for their hours.  Whilst there is no evidence that the Service will try to recover monies paid for work performed outside of PSI 24/2008 at the payment plus rate, we are concerned that this is a possibility.  

If the provisions of PSI 24/2008 do not cover the work to be performed, Bulletin 8 allows managers to utilise additional hours to manage the establishment.  Bulletin 8 is clear in how TOIL should be accrued and repaid and local agreements should be in place to ensure that Bulletin 8 is followed. 

In relation to allowances, it has been brought to the Executive attention that some staff are being promised an allowance if they agree to move to a specific area or role in the Prison.  Members are reminded that it is only specialist roles that attract a specialist allowance and in order to avoid any claims for overpayment in the future, they should ensure that any letter of appointment sets out their right to payment of such an allowance and that the payment is made for and on behalf of the Director General/CEO of NOMS.


 

Yours sincerely

STEVE GILLAN
General Secretary