Removal of out of hours on-call payment - no compensation, is this really legal ?

[lucky13]

Hi

I'm currently on-call for 3 weeks out of 4 each month and it's been this way for 15+ years, the company I work for now want to discontinue the on-call work and hence i'm going to be down nearly £600 a month.

My employers are saying the on-call payment is considered a flexible payment and so they are not going to compensate us in anyway.

My question is, is this legal since I've been on-call for 15 years and become heavily dependent on the money, can they really just take it away like this without compensating my pay in anyway ?

I've been reading up on employment law and found something called Conditions and Practice https://www.hrzone.com/lead/culture/...ractice-for-hr


Which seems to say that if you do something for an extended period of time then it becomes part of your contract and role...wouldn't this mean that since it's now part of my contract they have to compensate me in some way and they can't just take it away with 30 days notice ?

It's going to cause a big issue for me income wise, as it accounts for nearly 25% of my income...during the interview being on-call wasn't optional and if you accepted the job then you had to be on-call, how can they now say tough luck we have changed our mind and we don't need you to do the on-call.

[ULA]

Firstly what does you contract state about the on-call payment, was it written into the contract or was it a policy that sat alongside your contract? If the latter was it clear that the policy was discretionary and could be changed by management?

[lucky13]

Firstly what does you contract state about the on-call payment, was it written into the contract or was it a policy that sat alongside your contract? If the latter was it clear that the policy was discretionary and could be changed by management?

Thanks for replying it's really appreciated

There is nothing in my contract about it as I'm unable to find it and HR only have my contract from my previous job, nothing was updated when I completely changed rolls either that or they have lost it.

The only evidence I have regarding On Call is a document that was written and signed off by a manager 16 years ago, I've uploaded this along with my reply...I was hoping that even though OnCall isn't mentioned in my contract that due to the Conditions and Practice https://www.hrzone.com/lead/culture/...ractice-for-hr law that it would become part of my contract and mean they can't just cancel it ..as I mentioned when I went for the job they said I had to be on call otherwise I couldn't have the job... now they are trying to take it away 16 years later without any compensation.

[ULA]

In order for a term to become implied into a contract of employment by custom and practice it must be, "reasonable, notorious and certain". In other words, the term must be:

1. fair and not unpredictable
2. well established over a period of time,
3. known to employees,
4. clear and unambiguous.

In my view the document that you were provided and I presume other staff on-call were given a similar document, could be argued to be covered by the above i.e.

1. the terms are fair and know
2. it has been paid on that basis (although set amounts may have increased) for 15+ years
3. it is known to you and I presume other staff on call
4. it is very clear

If that is the case then in wanting to change a term which has become implied into a contract of employment your employer needs to go through a period of consultation in order to try and get your agreement to the change, not impose the change.

My thoughts are that you should go back to your employer stating the custom and practice argument and consequently you understand that a period of consultation has to be gone through to try to get an agreement to the change as the starting point.

[lucky13]

Thanks again for the above post it is really appreciated, we have now entered into consultation as you mentioned it would but they are arguing that the on-call payments are flexible and so they don't need to compensate us.

Does this really seem fair because if Conditions and Practice does apply to the on-call policy I attached above.... surely this would form part of my original contract and they would be forced to compensate us ?

As I said it was mentioned during my interview being on-call was a condition of accepting the job, so how can they now just take it away without compensating us ? Our company has stated the below reasons why we can't have compensation..does it really seem fair ?



Q The allowance has become part of my salary over a number of years and will have a detrimental impact on my income. Can the allowance be continued?
A Standby, on-call, shift allowance and overtime are all payments which are made to compensate employees for the provision of additional duties as and when these duties are required. These payments are not consolidated in to basic pay and so can be removed as and when the requirement for these duties no longer exists.

Q Can on-call payments be made into a monthly legacy allowance at the current level? The allowance would be frozen and it would not increase year on year with salary increases.

A Due to the business no longer having a requirement for these call outs it is no longer necessary for those affected to take part in the stand-by rotas. As the proposal is to relieve employees of these duties, the payments which compensated employees for being on stand-by would then cease.

Q When is the allowance due to cease?
A Following consultation, it is proposed to cease the allowance from 1 July.

[ULA]

Ok so it is good they are starting a period of consultation in regard to the removal of call-out allowance since the requirement of staff to be available to cover call-outs is no longer a business requirement.

The call-out allowance was given to recompense you for being on stand-by and available should you be called out, it is therefore a payment in addition to your basic salary and is not incorporated as part of your basic salary. So in some respects I can see the argument being put forward by your employer since you will no longer be required to be on stand-by for being called, out the compensatory aspect of this payment is no longer valid. Given that though the custom and practice argument is niggling me but I cannot find definitive case law at the moment, for this type of situation, to support the argument, but then I am not an employment lawyer.

Sorry I am feeling a bit defeated at providing you an answer either way that is more definite.

Quick questions are you in a union, if so they may be able to provide a more definitive answer, alternatively do have an insurance policy with legal expenses cover if so they may have a legal helpline you can call? If those do not apply then you may also be able to find a local employment lawyer that may offer some initial free telephone advice so may be worth a call just to get a more definitive answer.