Couple of contract issues

[CuppaTTwo]

Hi,

I have a couple of issues and after searching Google, Citizens Advice etc I’m not getting a clear cut answer.

The first issues is regarding overtime, my contract stipulates contractual hours, workplace and the usual overtime maybe required to suit business needs and agreed rates are time and half yet I’ve worked 17 weekend days away from my place of work and not received any overtime pay, when I approached my employer he’s reply was “we don’t really have contracts but our solicitor or whoever advised us to write up a generic contract and the overtime doesn’t apply to you”, it’s a small family run business and I didn’t want to cause much of a fuss but my name is on the contract with the agreed pay etc (I have had pay increases since which I’m hoping doesn’t make this contract null and void) but since my “overtime” is being increased next year I now have a problem with this.

Secondly the overtime is not at my workplace, we have to travel to different venues across the UK, most of the time involves staying in a hotel and getting a daily food allowance of £33, does this change the overtime which should be paid or agreed?

And finally can trackers, it’s been noted that if a tracker is turned off we will have a disciplinary but no one has agreed to being tracked or asked do we agree to this and what data will be used, we’ve been told the vans have trackers and that’s it, where do I stand, the vans are used to commute to and from the venues but we don’t have an agreement on when we should finish at a venue, there’s no agreement on how many hows we should work at a venue or when we should travel to and from so it just seems very grey and left open to dispute and disagreements so before I bring all of this up with my employ really want to know where I stand, what’s their legal obligations and what laws have they broke?

thank you

Cuppa

[atticus]

this looks like one for ULA

[ULA]

On your first point if you have a contract that states you are paid overtime at a rate of time plus a half, then that is what your employer is obligated to pay you. To say "we don’t really have contracts but our solicitor or whoever advised us to write up a generic contract and the overtime doesn’t apply to you" does not avoid them paying what you are contractually owed. Also all employers are legally required to provide an employee with a written statement of the main terms of their employment contract.

Unless at any time in the past your employer has agreed with you to vary the terms of your contract and specifically about overtime then you should be having a discussion with them about paying what you are owed for the overtime you have worked. Potentially not paying monies you are owed would be considered as an unlawful deduction of wages.

I presume you have an agreement for the payment of overnight accommodation by your employer with a meal allowance this would generally be in addition to the payment of overtime.

In terms of tracking devices on company vans I my observations are:

1. Does the business have a policy in place covering things like usage of van, tracking, motoring offences, accidents etc. If not they should have one in place.
2. The information that GPS tracking devices can gather about you is considered personal data. Therefore, this data must be dealt with in accordance with General Data Protection Regulation (GDPR). Any policy should set this out.
3. It is legal for the business to track the van if a) you know you are being tracked b) you have given your consent to being tracked c) your employer is only tracking you during working hours.

[CuppaTTwo]

I’ve had this conversation regarding overtime and it was completely swept under the carpet with the excuse of the general contract, I didn’t want to come across as difficult or create an awkward atmosphere but the difficult situation is now the extra weekend work which will be worked for free because everyone else has historically, this also brings the tracking issue to light as we’ve never been asked or given the consent, the location and whereabouts at certain times has been mentioned which shows we’ve been tracked but the what makes this more difficult is the fact that we have agreed times of when we work from and to whilst working away, I can set off at 5:00am Sunday morning and return home 5:00pm Sunday evening, it can be 8:30am Friday morning and return home at 4:00pm Saturday, we’d leave the venue around 3:00pm Friday and arrive back at the venue from 7:30 Saturday, there’s no outline to when we should work, for how long, or documenting any times because we’re expected to determine when we need to be there to suit customer needs.

Our hotel is booked and paid for by the company before attending the events, the food allowance is paid by ourselves but then £25 tax free is paid into our account on pay day and the additional £8 is added to our wage to make up to the £33 which we were previously entitled to until the government disagreed with claiming so much for one reason or another, this was changed before I started.

Because I’ve only been with my employer 18 months or so I didn’t want to cause an issue and just took it like a fool but any help in wording and having the conversation with my employer is appreciated ULA

[ULA]

A couple of observations:

1.If your contract of employment provided by your employer, regardless of what they say, says that over your contracted hours per week you are paid overtime, then that is what they are contractually obliged to do.
2. I have already set out my views on the tracking. If they had this in the vans prior to you joining then they should have a policy in place that they referred you to so that you were fully aware of what tracking was used for etc.
3. Does the contract have a stated number of hours you work per week i.e. 37.5 hours per week Mon to Fri? Hours over and above this are paid at the time and a half overtime rate?
I am very confused as to what you say "I can set off at 5:00am Sunday morning and return home 5:00pm Sunday evening, it can be 8:30am Friday morning and return home at 4:00pm Saturday, we’d leave the venue around 3:00pm Friday and arrive back at the venue from 7:30 Saturday, there’s no outline to when we should work, for how long, or documenting any times because we’re expected to determine when we need to be there to suit customer needs."
You may need to post up the relevant clause or clauses from your contract regarding hours of work and overtime to assist.

In respect of bringing this up with your employer then that is something for you to consider but you may want to initially do this on an informal basis. However I would want to raise one thing which is you have less than 2 years service and your employer could potentially "fairly" dismiss you without giving any reason. Although they are potentially not paying you what you are owed under the terms of the contract.

[CuppaTTwo]

1. How does an employee who’s already raised this with their employer quoting their contact of employment enforce payment?

2. The vans which come factory fitted with this feature where purchased after I started working with the company, there has been no mention of the company handbook being updated to reflect tracking but a new employee handbook is being introduced when we come back in January.

3. Quoted from my contract, “standard hours of work are as follows:

Monday to Thursday 8.30am till 5.00pm Friday 8.30am tll 4.00pm

During the week, you may be required to work extra hours. You will be advised by your manager if this is required.”

”Any time worked in excess of your standard hours will be paid at above your normal rate, providing the overtime was authorised and your normal working week exceeds 40 hours”

My point behind trying to explain some of the hours is that when we work “overtime” it can be vary so much but because the overtime is not worked at our contracted work place would I class overtime starting from the minute I switch the van on and start travelling or when I arrive at the venue?

Unfortunately I’m aware of the 2 year probationary period set in place by the EU but if they decide to terminate my contract after bringing this to their attention, would that not imply they’ve acted unfairly and dismissed me rather than 1. Paying me owed overtime per contract and 2. Using tracking devices to track the individual?

[ULA]

1. You would have to start by raising a grievance for unlawful deduction of wages and follow the internal grievance process. If that was not successful then you would have to start Early Conciliation via ACAS.

2. I guess the question to ask is will the new handbook include a statement on vehicle tracking.

3. It appears that overtime is payable after you have worked 40 hours per week. Although it does not state it is at time and a half - it just says "above normal rate" so not very clear exactly the rate it will be paid at.

If it is travel time as part of the job and above the 40 hours per week then potentially this is overtime.

It migth be considered wrongful dismissal as your employer has potentially breached your contract of employment.