Flexi hours owed by employees

[brianj1991]

Good afternoon.

I have a query relating to two similar issues.

I work for a large NHS trust. The scheduling department is responsible for scheduling staff and looking after their working hours. The trust has employees on a variety of different rota patterns, which vary by working location and role.

---

1) Some rota patterns contain "flexible shifts". These shifts "fall" on certain dates within the rota cycle but because they are flexible, an employee does not actually have to work on that day. They are able to work at any location of their choosing on any date. They are to arrange this shift booking with the scheduling department.

Some staff fail to book some of their flexi shifts. The employer rarely looks at the issue. Infrequently they will do a review and suddenly declare that employee owe hundreds of hours. The employer then wants those hours worked within unreasonable time frames, or paid back to them. Is there anything that governs the manner in which these would have to be worked / paid back?

---

2) Nearly all staff in this trust will move from one base of work or role to another, which also brings a change in rota pattern. When moving rota patterns, employees might move onto a rota at a point in the cycle that has a lot of days off. This means they will have, on average, worked less hours than they are contracted to. They end up with a negative margin and owing hours. This is at no fault of their own, and simply part of the nature of the way staff move around the organisation.

When these employees exit the trust, they are being billed for owed hours. Sometimes this runs into the hundreds of hours. Final pay packages are stripped of hundreds to thousands of pounds, or leavers could be invoiced for what is owed. No effort is made by the scheduling department, or the Trust, to keep track of these hours or action the problem before people leave. The sudden emergence can cause significant financial difficulty for people, when they are at no fault themselves. These employees have dutifully attended their work as instructed. Only the failure of the Trust's scheduling department / the way the organisation works causes these massive deficits. Can the recoup of these hours be enforced?

---

I'll be very grateful for any opinions.
Many thanks.

[ULA]

The intital starting point for all of this is what does your contract of employment state or is there a policy that explains the different rota patterns and this system of flexible shifts.

Also you need to look to either of these documents in regard to the reconciliation of hours worked against contracted hours and the ability to recoup and shortfall through final wages when someone leaves the trust.

Also I presume, working in an NHS trust, a number of employees are in a union has this issue been raised with them?

[brianj1991]

The intital starting point for all of this is what does your contract of employment state or is there a policy that explains the different rota patterns and this system of flexible shifts.

Also you need to look to either of these documents in regard to the reconciliation of hours worked against contracted hours and the ability to recoup and shortfall through final wages when someone leaves the trust.

Also I presume, working in an NHS trust, a number of employees are in a union has this issue been raised with them?

Thanks for the response.

Amazingly, the NHS terms and conditions handbook does not seem to contain any clause regarding repayment of overpaid wages / hours owed. I've had a reasonable search, but I'll scour it more closely again later.

There doesn't seem to be much written on this type of flexible shift within the trust's own policy or procedures. I will continue to search for a policy on repayment of overpayments in general.

The issue has been raised with one of the unions, little has been said in return.

[ULA]

Given the lack of information it is difficult to give you anything other than my observations based on what you have stated.

1. You state that "Some staff fail to book some of their flexi shifts" - I would suggest that it would be beneficial for staff to ensure that they are booking their flexi shifts in a proper manner and keeping a personal note as well, thereby ensuring everything is adequately recorded to ensure that any time owed is correct. In terms of timescales for working back the time or it being re-paid then unless this is governed by contractual arrangements or policies then all I can say is that in the terms of the former, it should be based on reasonableness of the timescales being asked to work the owing time, for the latter then the amount owing would need to be notified to the staff member with details of how and when this is expected to be paid back via deductions from salary.

2. If an individual has been paid for their contractual hours that they have not worked then the trust has the right to make deductions for overpayments of salary this is allowed under the Employment Rights Act 1996 (ERA). An employer is legally entitled to recover any overpayment of wages, either whilst the person is employed, as well as after the employee’s contract has come to an end.

[brianj1991]

Given the lack of information it is difficult to give you anything other than my observations based on what you have stated.

1. You state that "Some staff fail to book some of their flexi shifts" - I would suggest that it would be beneficial for staff to ensure that they are booking their flexi shifts in a proper manner and keeping a personal note as well, thereby ensuring everything is adequately recorded to ensure that any time owed is correct. In terms of timescales for working back the time or it being re-paid then unless this is governed by contractual arrangements or policies then all I can say is that in the terms of the former, it should be based on reasonableness of the timescales being asked to work the owing time, for the latter then the amount owing would need to be notified to the staff member with details of how and when this is expected to be paid back via deductions from salary.

2. If an individual has been paid for their contractual hours that they have not worked then the trust has the right to make deductions for overpayments of salary this is allowed under the Employment Rights Act 1996 (ERA). An employer is legally entitled to recover any overpayment of wages, either whilst the person is employed, as well as after the employee’s contract has come to an end.

Thank you for your further points.

Due to other reasons, all staff have a fluctuating margin of hours, some in deficit, some in credit. The trust is “writing off” hours and setting a new baseline of zero for the majority of staff. This is because it states that it’s hours calculation process is inaccurate, containing “significant variations” in the data set. However it will target and recover the hours of a couple of groups of staff where they feel these groups have had their hours closely monitored by management.

In fact, the trust has not been monitoring these groups hours and has failed to do so for 3 years. When implementing the flexi shift procedure, the trust released guidelines stating that it would enable staff to manage their hours and would ensure there is a suitable process in place to monitor staff hour balances. The trust listed two actions it would take to do this by early 2019, and has failed to undertake either of them. This would have prevented staff accruing large deficits. Even when staff actively approach the responsible department for their hours balance, they were told “we do not know” and redirected to other management teams, who also did not know.

Considering there has been no monitoring of these hours, it is completely reasonable to assume that target group data is inaccurate and subject to the same significant variations as the wider staff. Some individuals have been able to demonstrate that they have worked some shifts the trust believes they haven’t, proving their data inaccurate.

The trust also has a policy for implementing procedural guidelines. When the flexi system guideline was implemented, this policy was not followed correctly. The policy also requires the responsible senior manager to regularly review guidelines to ensure they remain up to date and fit for purpose. This has also not happened.

To me, this whole thing seems inconsistent and unfair. Their process is liable to inaccuracy and was perfectly preventable if the employer had followed its guidelines. I wonder if you, or anyone, thinks that employees would have a case to having these hours written off? Or is this all irrelevant, because it is still an overpayment regardless of the cause, and therefore is recoverable under ERA 1996?

Thank you for your help so far.

[ULA]

I think there may be an argument for consistency in the "writing off" of hours for everyone, if they are effectively recgonising the system has not been well managed and they are going to zero everything back and restart the process, with I presume, much better monitoring.

However, the scope of section 14 Employment Rights Act 1996 does allow for recovery but as this situation covers a number of staff members, then again consistency in the application of how they deal with the issue should be considered by the Trust in my view.