Overnight phone cover after work

[Schakal]

Hi All

My first post and a bit lengthy one, sorry

I have been employed by the same private company over 18 years and always worked on a 4 on 4 off shift pattern throughout the years. Due to the nature of this particular business, (on my 4 days) after finishing my 11 hour day shift, I take the company phone home for possible emergencies & call outs that may occur during the evening/night time before I come back to work in the morning. The company, even though did not compensate me for this extra work/cover at the beginning of my employment (pre 2010), then started paying me a set fee per every night I took the phone home, payments for this started around 2010 onwards.

Just to be clear on a few points ;


-Taking the company phone home has not been optional since I was a lone worker/the only employee that is covering my 4 day shift and 24 hour work cover has been required.

-If called out, I have to go back to the office and deal with the emergency. After that, I can go back home for rest before coming back to work in the morning next day unless I get called in for another emergency before that. I receive a set call out fee for this per occurrence, plus I get paid for however many hours I worked, to cover that emergency on top of my basic pay.

-In the event of such emergency/call out, the customers I look after, pay a very hefty out of hours fee to the company on top of what they would normally pay during the normal hours of business for the same services. When it happens, the company makes a great amount of money for the call outs and it helps, keep regular customers that may need emergency cover at short notice, happy.

-All of this also means, I cant make any other plans on the 4 days that I am covering. i.e: have a drink, go out in town for a meal with partner ,cinema etc. in case I get called out.

-So in essence, my 4 days on shift technically belongs to the company even after my day shift ends.

The fee, I receive for taking the company phone home each night has never been increased since the company introduced this fee around 2010 ( exact date can be confirmed after a bit of digging)
where as my basic pay, have increased between 2-4 percent almost every year since I started with the company.

I have verbally enquired about this to my local management over the years, as to why the fee for taking the phone home never increases and I never managed to get a positive answer or seen any interest from my direct manager in pursuing this with higher management since he would not take the company phone home and this would not affect his pay in any way.

Recently, higher management have started questioning the legalities around staff in various offices taking the company phone home after their shift, to cover emergencies. They are arguing, staff that has done a whole day shift, should not be covering possible call outs after his/her shift, as this is like working on a 24 hour basis and he/she would not be able to get enough rest between his/her shifts.
This may lead to the company scrapping the phone cover altogether eventually.

Based on all above facts, some questions appeared in my mind and I want to make some legal enquiries myself eventually ;

1. Can the company simply take away my phone money which comes to around 25% of my total wages every month (based on today`s pay, it was a higher percentage 14 years ago) and expect me to live on less than I have been doing for the last 14 years ?
2. If the company stops paying the phone money and emergency cover altogether will the company have to inform me in a written way stating the reasons behind it ?
3. If the company stops paying the phone money based on legal grounds, would it also mean, they were making me work in an effectively illegal way for the last 18+ years that I can make a claim for ?
4. Do I have a claim for the fact that, this phone money per occurrence has always remained the same amount for the last 14 years even though my basic wage has increased almost every year since then ?
5. Can the company sack me for pursuing above or not agreeing with changes they may come up with that will/may affect my wages ?

I understand, I may need some serious legal assistance for the questions I have raised above but I would really appreciate if some of the very knowledgeable & experienced members in employment law would be able to give me some basic guidance in, whether I have a case at all or where I can start with this.

[ULA]

Does the phone allowance form part of your contract of employment?

1. If not and the company no longer requires you to have the phone for call-outs then in theory they can take away the allowance. If it is a contractual term then it is a bit more problematic for the company to do.

2. They should consult with you and give you reasonable notice of the requirement for you not to be on call after your shift and have the phone. Again depending on whether it is contractual benefit or not, will determine the extent of the consultation.

3. There may be but without further detail of what rest breaks you had if you were called out etc it would be difficult to be specific but this would need to be referenced against the Working Time Regulations.

4. Unless there was any contractual arrangement about allowances being reviewed, then it may be difficult to retrospectively have the level of allowances now reviewed.
However this could be part of any discussion on them removing the allowance and maybe asking them to consider some form of monetary compensation for it being removed. There may be the opportunity to use the "custom and practice" argument in respect of this allowance.

5. What action the company can /will take may depend on your answer as to whether it was a contractual term. If it was, then the ultimate conclusion, if an agreed way forward does not happen following consultation, is that the company could terminate your contract of employment and rehire you on new terms excluding the phone allowance.

[Schakal]

Does the phone allowance form part of your contract of employment?

1. If not and the company no longer requires you to have the phone for call-outs then in theory they can take away the allowance. If it is a contractual term then it is a bit more problematic for the company to do.

2. They should consult with you and give you reasonable notice of the requirement for you not to be on call after your shift and have the phone. Again depending on whether it is contractual benefit or not, will determine the extent of the consultation.

3. There may be but without further detail of what rest breaks you had if you were called out etc it would be difficult to be specific but this would need to be referenced against the Working Time Regulations.

4. Unless there was any contractual arrangement about allowances being reviewed, then it may be difficult to retrospectively have the level of allowances now reviewed.
However this could be part of any discussion on them removing the allowance and maybe asking them to consider some form of monetary compensation for it being removed. There may be the opportunity to use the "custom and practice" argument in respect of this allowance.

5. What action the company can /will take may depend on your answer as to whether it was a contractual term. If it was, then the ultimate conclusion, if an agreed way forward does not happen following consultation, is that the company could terminate your contract of employment and rehire you on new terms excluding the phone allowance.

Thank you for your reply and all the detailed answers you have given.

I have 2 contracts to hand, one is from 2012 which clearly mentions the phone allowance. I have signed a new contract from 2021 onwards and it looks like the company "cleverly" removed any mention of the phone money, even though the practice has not been changed and, unfortunately, I have signed it without paying attention to detail.


While I was researching further, I have found the below case from Europe:

Ville de Nivelles v Rudy Matzak

https://www.bbc.co.uk/news/world-europe-43141580


This is pretty much the same way it worked & still works with the phone cover in my job. Even though, a response time for a call out is not specified in the contract, the expectation is to attend the call out as soon as possible and I will often get to the office in 10-15 minutes for the call out.

Just to give you an example : When I was on call with the company phone, I had a call at 04:30 am, I took the call, got dressed and was in the office within 15 minutes to attend the customer. My day shift same day started at 07:30 and would finish around 19:00 unless there was extra work after this time and the call out may occur again after I finish my normal shift.

So to be clear ;
- The call out can happen anytime after my normal working hours in the 4 days that I cover the shift.
- It can last as long as it takes.
- I am the only person covering my 4 days shift and there is no one else to attend the call out during these 4 days.

The point I am trying to make here is that, in my view, this working pattern is not normal, as I am constantly available to the company business at a cost of my right to a private life. I also feel, I have been underpaid all these years, given my availability as above.

My next question is, based on above ruling and my circumstances as highlighted above, do I have a case here which is worth pursuing in terms of compensation?
And if so, what should my starting point be?