Forced overtime pushing wife's pay below minimum wage

[tezuk]

Hi,

My wife has been working as a lunchtime assistant ("dinner lady") for a local school. She is paid to work 1 hour per day at the minimum wage by the local authority, a county council.

For some time due to reallocation of the duties of the staff and a decision not to replace staff that have left she has been finishing approximately 10-15 mins after her agree finish time.

She clocks in and out using a biometric reader (fingerprint scanner) which reports your in/out times and has taken a video recording showing that for the last three months she has never finished within the hour and usually works more than 10 mins extra on top of what she is paid for.

Not only is she not being paid for the full time that she works, but she is effectively being paid below the minimum wage.

She has been told that she is not able to leave on time because "such exigencies of the job are not unanticipated" and that she has a "duty of care to ensure that there is sufficient supervision" for the children.

After several months of this and having reported it to her manager who is "powerless to raise it on her behalf" she forced the issue by submitting an overtime form for her most recent month of extra hours based on her recording.

She was told by a senior leader of the school that all overtime has to be pre-arranged (true) but furthermore if she persisted or reported the school then she would be dismissed and would not longer be eligible for re-employment by the local authority. This might be an issue as having young school-age children there are only so many jobs that are suitable.

This seems like a version of the old movie line "if the mess with us we'll ensure that you never work as a dinner lady again!" (A bit tongue in cheek.)

She has decided to leave as soon as she has found work elsewhere, although isn't confident that other similar jobs are any better but "feels" indirectly forced out for having caused a fuss.

She does have the evidence of the pattern of unpaid overtime that she has been made to work. I've advised her to consider making a report to the local authority and HMRC for breach of her rights, but is it true that doing so might permanently bar her from working in a similar role in a local school and are there other issues that she should be aware of before "creating a fuss".


Thanks,

tezuk
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[ULA]

What does your wife's contract state about working additional hours?

Is her employment contract direct with the local authority or the school?*

[tezuk]

Apologies for the delayed reply.

We didn't notice the reply and it took a while to find out what should be a straightforward answer to a simple question.

The parties on my wife's employment contract are her and the academy trust that runs the school. However the trust outsources its recruitment and staffing matters (payroll, disputes, etc.) to a shared service administrated by the local authority. Her payslips are letter-headed solely by the local authority and the PAYE employer reference number belongs to a different school in the trust, but it is the same for other employees too.

When she asked for clarification she was told that by her manager that she might have been given an old version of the paperwork to sign! I guess this doesn't matter since a Deputy Head at her school signed it and therefore entered into the contract.

Anyhow, the contract mentions the expectation of *paid overtime* with "specific prior arrangement" and a necessity to work additional hours to "cover exigencies". In the latter case it does not define the type and frequency of such exigencies nor whether such work would be paid.

Since her extra time is unpaid the former does not apply so the employer must rely on the latter part. I assume that since she is already on the minimum wage then they would have no choice but to pay her for the extra?

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[ULA]

Employers do not have to pay workers for overtime. However, the average pay for the total hours worked must not fall below the national minimum wage. If the exigencies of the job mean that she falls below the minimum wage then she does need ro raise this formally. Going forward maybe a suggestion would be that a "specific prior arrangement" is made for your wife to work overtime to a certain amount of time e.g. 15 mins on a daily basis. *
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