Contracted hours not met nor paid

[des8]

Can an employer claim custom and practice for not paying contracted hours?
Employee has written contract stating contracted hours 24pw
Employee is often given less than contracted hours, but it has just been noted by a third party that she is only being paid for hours worked.
The week's working rota is published on the preceding Friday or Saturday (so could that be claimed as reasonable notice of reduction in hours?)
There is no specific term in the contract allowing this, so is it either a breach of contract, or is it a change that can be deemed by custom & practice.

This has been going on for nearly 5 years!

I'm suggesting first approach must be informal, but depending on outcome followed by lodging a grievance.
Eventually ACAS early conciliation

[ULA]

In the contract does it say contracted hours are "up to" 24 hpw or is it definitive that 24 hpw are what the individual is contracted to work? If it is the latter then in my view there is a potential breach of contract.

If the company want the person to work less hours, they must do either one of two things.

1 - Reduce the terms in the contract to the actually required hpw for which they will need the person's signed agreement for this to happen.

2 - Ask the person to work less hours but pay for 24hours - without any form of reductions from future pay, without prior written consent.

I would certainly agree with the proposed way of the person trying to resolve the issue.

[des8]

Thanks Ula

Have now seen a copy of the contract and the hours aren't as clear cut as I was told.

The contract states:
Hours of Employment 24
(subject to change e.g. requests)

then three pages later:
Contracted hours:
your total of contracted hours will depend solely on the number of children within the setting at that given time. If it is a busy period you may be asked to work extra hours (you are not expected to do so.)If the nursery is going through a quiet period the Management reserve the right to cut hours.

and then under "STATEMENT OF MAIN TERMS OF EMPLOYMENT"
Your normal hours of work are 24 per week, ..... between Monday and Friday. Your days of work and start/finish times will be in accordance with the published rota to meet the operational needs of the business.In the event of you working in excess of 6 hours a day, you will receive a 30 minute unpaid break.. You may be required to work additional hours when authorised and as necessitated by the needs of the business


Now are they contracted hours or not? I can see that contract being construed both ways.
What do you think?


additional note:
Overnight I have been scrutinising the hours actually worked and the pay received.
At one point the company premises were destroyed in a fire.
The staff were offered redundancy or a 50% cut in salary/wages (wages used in contract but salary on pay slips!) whilst premises being rebuilt.
The company also ran an "after school club" in local primary school.
This person opted to work on, and whilst she actually worked very reduced hours of perhaps 6 per week, she was paid for the full 12.

It would seem that during the period of rebuild the company honoured her hours as contractual, but during the rest of her employment they have treated her as being on a zero hours contract and only paid for the hours actually worked

[ULA]

Thanks for the further clarification.

So what I think the interpretation is that the contracted hours are 24hpw however the page 3 section makes those total hours dependent on the number of children and gives the nursery the right to vary up or down from 24 hpw accordingly.

A main statement of terms is normally just a brief summary of the highlights of the employment terms e.g. hours, holiday, salary and the contract is where the detail is.

In regard to the additional note I remember the situation but cannot remember whether the offer of 50% of salary rather than redundancy was irrespective of whether they worked any hours at the after school club?

[des8]

Thanks Ula
So under the current contract the employer can vary hours at their will, which in effect makes it a zero hours contract.

The contract details posted above are from a replacement contract that was agreed June 2018, after the fire
Prior to that the contract wording (which I just received..it's like pulling teeth!) was as attached:




If the contract has a flexibility clause does that give management the right to amend the contracted hours on a weekly basis , notification by means of a work roster.
Shouldn't there be a more formal notification that contract hours are changed from eg 22 hours to 16 hours.
In my naivete I would have thought the roster is notification of working hours, not contracted hours.

The clause in the attachment refers to CONTRACTED hours being dependent on number of children, but then refers to WORK extra hours,
so differentiating between contracted and working hours.
I just think it is a badly worded contract and is open to different interpretations

This continuous changing could possibly have an effect on those who claim working tax credit, as (depending on circumstances) they need payment of a minimum 16 hours per week to qualify.

[ULA]

No this does not even make it a zero hours contract as I presume she does not have the right to be unavailable to work.

I have to agree with you that it is not well worded and the interpretation is far ambiguous. If 24 hpw is truly the contracted hours then even if the rota does not give 24 hours but say 20 then they should still pay for 24 hours as if they had all been worked. The

Hours of Employment 24

(subject to change e.g. requests)

is there any further definition of "subject to change".

Seems a bit like the nursery wants it cake and to eat it.

Do you know if all the staff contracts are worded this way?

Absolutely agree with your final point on your last post.

[des8]

Have finally got my hands on a full copy of original contract which boldly stares on penultimate page:
Contracted Hours of Work.....32

no other comments whatsoever, so good to go!
Now working out how much she is owed before opening discussions!

[ULA]

Well done on getting the copy of the contract and get the details needed.

Good luck

[des8]

Just an update.
Conditions at the nursery have deteriorated to the extent the employee has decided to hand in their notice.
I was informed about this on Saturday and told come what may notice was going in today!
Realise this could make ET claims difficult as there has been no attempt to resolve the matter, so her resignation letter refers to various minor incidents, and finishes:

"The examination of my records also showed that over the past 4.5 years I have not always been paid according to my contract

The “job description” of my contract states on page 4: HOURS OF EMPLOYMENT 24
Then on a separate “STATEMENT OF MAIN TERMS OF EMPLOYMENT” on page 1: HOURS OF WORK
Your normal hours of work are 24 per week, falling between 7.45am and 6.00pm between Monday and Friday. Your days of work and start/finish times will be in accordance with the published rota to meet the operational needs of the business. In the event of you working in excess of 6 hours in a day, you will receive a 30 minute unpaid break. You may be required to work additional hours when authorised and as necessitated by the needs of the business.

It is clear that I am contracted to work 24 hours per week, although my actual working hours are subject to change. I should be paid for the minimum of my contracted hours, plus any extra that I work. If I am not rota’d to work my full contracted hours I am still entitled to be paid for them.
The contract states clearly that during a busy period I may be asked to work extra hours (although not expected to do so), but if the nursery is going through a quiet period, the Management reserve the right to cut hours.
However if this latter course is necessary the Employee Handbook lays down the process
on page 6: SHORTAGE OF WORK
“If there is a temporary shortage of work for any reason, we will try to maintain your continuity of employment even if this necessitates placing you on short time working, or alternatively, lay off.
If you are placed on short time working, your pay will be reduced according to time actually worked.”

There has been no downturn in the number of children which would trigger the necessity of short time working. In fact due to increased workload recently more staff have been engaged. There has been no shortage of work.
I note that the only occasion when short time working was implemented was for the period in 2017-2018 following the fire when I agreed to a 50% cut in contracted hours and was basically paid for 12 hours per week even though I worked occasionally fewer than 12 hours per week, ie I was paid for my contracted hours, whether worked or not.

Sometimes my rota’d hours are less than my 24 contractual hours and examination of my records has indicated that I am being paid only for my working hours.
Due to the manner in which pay is made (monthly when the hours are weekly) I was unaware of this. I had assumed I was being paid according to my contract.
A quick calculation indicates that over the past four and a half years I have been underpaid by a total amount in excess of £3,000.00
I regard this as a fundamental breach of my contract which has caused a loss of trust and confidence in the company, and it leaves me no option but to tender my resignation.

Accordingly I give notice that my last day of employment by XXXXX will be
3^rd December 2019 although I am prepared to withdraw my notice if the matter can be resolved to our mutual satisfaction."

If employer runs true to form she will be out of a job this pm.
Hopefully the final paras will help what I foresee will be an inevitable claim either ET or County Court

[ULA]

Sorry to hear that it has all become so bad that the person has decided to hand in their notice.

As you say the individual has not attempted to resolve the issue via a grievance which I would have suggested is the starting point, however what is done is done. If you have had a hand in the final paras being put into the letter then well done it at least gives the company a chance to try and resolve things but also if they read between the lines see that if not then there may be a claim coming.

[des8]

Just an update:
Grievance hearing conducted by owner, notes taken by other director, completely useless.
For every point raised the owner said "prove it".
Result was "grievance not upheld"
Appealed
"independent" third party heard appeal
Result "up held in part"

The important bit that was upheld was an admission that pay had been incorrectly calculated, but this would be recalculated as the company do not agree the figure claimed (ballpark £4750.00).
However as the company does not have any records prior to the fire in October 2017 it will be interesting to see what they produce, especially as the employee has rota details back to Oct 2015!

While awaiting their calculations a request has been sent today* for Dec 2019 pay (3 hours) and accrued holiday pay* plus P45
Final day of employment was 3rd December

A minor, but amusing point, brought up in the grievance hearing was the fact that the contract was contradictory in parts, in particular about the calculation of holiday pay which gave three different methods of doing it!
It was claimed that at a staff meeting at which she was allegedly present, these anomalies were discussed and ironed out, and here is a copy of the amended contract.
The copy presented was a copy of the original signed contract with portions deleted, but not initialled.
In actual fact the employee was not present at the nursery on the day of the meeting, as she was in university!
*

[ULA]

Hi des8 thanks for the update. At least perseverance led to the important part of the grievance being upheld

Hopefully now the individual can get the money owed and can move on to find a new position in a better run organisation.
*

[des8]

She already has a new position, subject to references.
Guess who is dragging their feet over sending one!

[ULA]

That is good news and yes I can guess who that would be, hopefully they will not drag their heels for too long or the new employer may let her provide an alternative referee if they do not "play ball". *

[des8]

Further update:

New job finally started 11th Feb after delay in obtaining reference

December pay received finally 2nd Feb, with no accrued holiday pay but* with duplicate P45.
Employer claimed to have sent them out mid December (!) and so sent replacements (forgetting you can't issue replacement P45?)

Wondering if it is even worth trying for constructive dismissal (which I think will be difficult to prove), and instead just send LBA for unpaid wages
They have admitted there were unpaid wages, so it is just a matter of quantum over past 4.5 years. (tribunal only goes back 2 years)
They are dragging their heels over producing a figure so perhaps a threat of court action will produce a burst of action so negotiations can start.

Comments appreciated Ula*