Out of hours on call being removed what compensation is due?

[ccatriver]

The company I work for are stopping out of hours service on 1^st April 2024.

• the out of hours support is a monthly rota, my shifts can differ each month (depending on the number of days in the month), but I usually undertake a minimum of 2 shifts each month. We make an overtime claim each month for the shifts we have covered.

• the out of hours support is NOT mentioned in my employment contract, but believe this to be an implied term by custom and practice - I have been on the rota since around 2007.

• since September 2023 one member of the out of hours team was made redundant so I took on additional shifts to cover so since then the money I get each month has doubled.

• my employment contract says "the company reserves the right to alter to amend the terms of this contract of employment as the needs of the business dictate"

My questions are :-

1) I believe they want to give a notice period of 12 weeks and phase out the payments with 100% of the normal amount being paid in the first month, then 75%, 50% and 25% so at the end I would have lost the total additional money I used to receive. Is this legal? I am losing a significant amount of my monthly salary (I am part time). My manager thinks they may try to give me a pay rise but this won't cover the whole amount of income I will lose - this is not yet confirmed...
2) Does the fact that I have to claim overtime separately each month make any difference?
3) If they do have to compensate me, should this be based on the historic amount I received monthly or the doubled amount which I have received since September 2023?
4) One of the customers that pays for this service has approached me to provide out of hours support to them privately, am I able to do this legally? It is for a service that the company no longer provides.

[ULA]

It appears from what you have said that the out of hours support is compensated for by way of overtime in addition to your basic salary and this appears not have been written into your contact as being guaranteed. You make a claim for the shifts that you have covered and this may vary from month to month.

There is no fixed time limit after which something is definitely part of an employment contract, it would be up to an Employment Tribunal to decide if the time period has been sufficient to render the extra hours you have been doing since 2007 as being permanent under "custom and practice" i.e. the extra hours becomes a term of your contract, that your employer cannot change without consulting with you first. In order for an entitlement to become established by custom and practice, it must:

1.Be established
2.Be reasonable
3.Be notorious i.e. well-known and expected to be received
4.Be certain

However, even if this has become an implied term of your contract, then the law does recognise that changing needs of the business, in this case the withdrawal of out of hours service, may require an employer to consult with employees or a recognised union about making changes. This could include making proposals as set out for a phased reduction in the amount of overtime that that you have received.

In terms of the approach you have had you will need to check your contract of employment and any company policies that may cover aspects such as second jobs, restrictive covenants and a non-compete clause.

[ccatriver]

Thank you ULA - they are offering a phased reduction over 3 months, but as this is a huge drop in my income I wanted to be sure that there wasn't any point of employment law that I could quote to have my salary increased to compensate for the loss of income. I believe it is an implied term as it has been the same (claiming for the shifts done, EVERY month since 2007) and a rota is in place.

Does this form any argument for unlawful reduction in wages?

[ULA]

Everything I can think of I set out in my post #2, so you could push back on it now being an implied term by custom and practice.

An allowance for out of hours support is not automatically classified as wages, that I am aware of, so doubt if you could claim unlawful deduction of wages.

[ccatriver]

I have found a point of law!! Wilson v. Associated Newspapers Ltd (2008)

The company have now come back with a new offer,

[ULA]

Well done on finding a point of law.

Glad to hear the company have given you a new offer.