Average Hours Paid vs Actual Hours What's the law?

[beachcomber]

Good Afternoon,

I have a query regarding working hours. Our employer put us on casual worker agreements and gave us an assignment that lasts for approximately 8 months. They have a zero hour clause and can tell us to not come in but said it is not a zero hour contract as they gave an assignment of 8 months. They call it a seasonal fixed term assignment. I feel they are are pushing the limit with the casual worker agreement but not sure on that.

We work more hours in the summer, and less in the spring and Autumn. The employer insists we are paid based on an average of 41 hrs per week for the full season. This means our monthly salary is profiled and so when we work more in the summer we don't receive more pay, but in the off season there is no drop.

I don't think this is correct. What they are effective doing is knowingly withholding payment over the busy months. They argue that it means we get the same pay all season and this is better for us. My position is that I'd like to be paid for the actual hours I work and not have them averaged as I would like to use the money I earned now, not later. They are not budging on this, despite many reasonable emails to ask for payment for the withheld hrs.

So, for example, if one worked 220 hrs in July but the employer pay an average of say 164 hrs (41 hrs x 4 weeks) for July is that legal? In this example they are banking the difference which is 56 hrs and those 56 hours would net off with less hours worked in the Spring/Fall.

NB I am not doubting that it all works out by the end of the season. I just think it's not correct. I think the full time guys don't mind because they have the same monthly wage all year, but as a seasonal, I want paid for the time I worked at the end of the month.

They claim that because the 41 hrs average week is in the contract it is legal. I think it's not transparent. They show no hours in our payslip and I think they should show exactly the hours we worked. What's the consensus on this? Am I wrong?

[ULA]

I get what the employer is doing and I would suggest it also benefits them from a cash flow perspective. It also sounds like you have been given a zero-hours contract, which is one where there is no minimum number of working hours that the employer is required to offer or pay you but you will be paid for the actual hours worked, however you are not obliged to accept any hours offered to them with a fixed term contract for 8 months of work on a specific assignment. I am presuming from this you may be a seasonal worker?

My thought around this is that there may be a claim for unlawful deduction of wages in the months where you work more hours but are only paid the 41 hours set out in the "contract".

In terms of your payslip then as you are working "variable hours" then there is a requirement to set out the total number of hours payable in each pay period on the payslip.

Hope this helps but if you have more questions just come back to this thread.

[beachcomber]

Dear ULA

Thank you for replying and sorry for the delay. I think the reason they are insisting on using average hours is because that is how they pay the full time salaried employees (so they get the same monthly income every month over a year) and this was the way they used to pay us before they brought in the zero hour contract terms this year. Importantly, the old fixed term contract terms were better including pension and sickness payments. Now we are on a much lower pension and only statutory sick pay and they can tell us not to come in. In my opinion, the very nature of seasonal work is it is seasonal and seasonal workers need to be paid when they are working, but I think under a casual workers agreement that is the law?

I also think they might be using the average hours to get round the fact we regularly work 6 day weeks at 9 hours so 54 hour weeks. We are on a rolling rota so every 4 or so weeks we eventually get two 3 day weekends. That effectively means you are working on average a 5 day week over the contract. But we are actually working many 54 hour weeks.
I agree with your point about their cash flow. But I also think that if I am correct, and they should be paying us for all hours worked, they are also knowingly under reporting PAYE to HMRC?

Regarding the assignment, I think their use of an eight month assignment has got to be illegal? They are claiming we are on a casual workers agreement, and they claim they have commited to eight months of work so they claim it is not a zero hour contract. But at the same time, they have zero hour clauses and we have zero hour contract rights (pretty much nothing!). They also said those who regularly wouldn't be able to commit to the assignment would stop getting work.
To me it feels like they are exploiting us, as we are working full time for eight months of the year, on a scheduled rota. In previous years, they offered a fixed term contract, which had more legal protection for us.

Since I wrote above I have discovered that the full time staff get an extra payment each month which is called an foul weather working allowance worth approximately £1k/year. However, they do the exact same job the seasonal staff do, so this seems unfair.

Most of us will be employed again next year in early April. They said we wouldn't need to do interviews (as we did each year in the past) now we are on the casual workers agreement. I was wondering if they are abusing the casual workers agreement as we are doing the same work we did on the previous contract but under much worse terms for us.

The last point is I like the job and don't want to rock the boat, but it feels like we are getting a bad deal here. It is a public sector organisation and they are hard to deal with.

Thanks again for responding.