Being on call (unpaid) in work

[DenzZz]

So my situation at the moment is that I am working for a nightclub and all staff are asked to come in at set times on the rota (say my shift is 11pm-close). Now when I turn up to my shift I am told to wait in a staff room until its busy enough to warrant having me 'clocked on'. Now all staff have to do this and you can imagine when town is not busy we are waiting for up to 4 hours and then even sometimes just being sent home without working at all and ultimately no pay.

I have never heard of anywhere else doing this but they have mentioned in meetings that they are allowed to based on the fact they are part of the hospitality sector. I just want to know whether this is true or this is in fact illegal...

Thanks in advance

[Eloise01]

Re: Being on call (unpaid) in work

The hospitality sector is not exempt from obeying the law. In particular, two pieces of law - the Working Time Regulations and the National Minimum Wage.

The Working Time Regulations clearly stipulate that time "on standby" on the employers premises count as working hours. And the National Minimum Wage guarantees a minimum hourly payment rate for each working hour.

So this is, in fact, probably unlawful (not illegal - two different things).

However, that said, I have to assume that you are asking this question because you have not been in the job for very long, and on that basis I also assume that you know very little about employment rights and law. So there are two other things that you need to know.

The first of these is that, assuming you are an employee, you need at least one years continuous employment before you have any protection against unfair dismissal, and two years employment if your employment began on or after 5th April 2012. Although dismissal for asserting a statutory right (to the NMW, in this case) is automatically an unfair dismissal and therefore does not require a qualifying period, that assumes that you could link any dismissal to the fact that you were dismissed for this reason.

The second is that I have assumed that you are an employee and I have no evidence to support that assumption. In actual fact, I suspect that you may not be an employee at all. I suspect that you have a zero hours contract, which means that there are no guaranteed hours of work. People who have zero hours contracts are workers but they are not employees; that means that whilst, as a worker, there are the same rights to be paid the National Minimum Wage, you cannot claim unfair dismissal - ever! There is more information about employment contracts and status here: http://www.redundancyforum.co.uk/fre...cts-explained/ The whole arena of zero hours contracts is quite complex - what is purported to be a zero hours contract may in fact not be.

Whether or not you are an employee, you can take action to recover unpaid wages - see here for contact details: https://www.gov.uk/national-minimum-...r-minimum-wage But you should bear in mind that the chances are high that you will have no employment at the end of this and there may be nothing you can do about this. Speaking personally, I would take that risk, but it wouldn't be fair of me not to warn you of it. Whilst "get a new job" seems like really good advice anyway, not everyone is in a position to do so, and your personal circumstances are something only you can know.

[DenzZz]

Re: Being on call (unpaid) in work

So just to clarify, if my contract states I am contracted for 0 hours a week then I am not entitled to any wages whilst on call and waiting to 'clock on'?

Also, my company has compulsory staff meetings once every month for 3 hours to go over upcoming events and also training both behind the bar and general processes. I know that employees by law are meant to be paid for any training they do but we're not and are told we don't need to be paid as it is a meeting and not training. If anyone doesn't attend, they are given a disciplinary, despite not being paid.


Finally, do I have to be working there for a year before I mention anything either to them or any authorities? I am not overly concerned about my personal circumstances regarding these issues but I believe the company should be reprimanded for any wrongdoing.

[Eloise01]

Re: Being on call (unpaid) in work

This is going to be very complicated!

So just to clarify, if my contract states I am contracted for 0 hours a week then I am not entitled to any wages whilst on call and waiting to 'clock on'? No. If you are on call on the employers premises, this counts as working hours and therefore you are entitled to a wage which, averaged across the working hours, is at least the minimum wage. So lets say that you work (as in really work!) 10 hours per week and get paid £10 per hour; and are on stand by for 3 hours per week and get paid nothing. That is 13 hours working time. You have been paid £100 (10 hours times £10). The NMW is currently £6.19. Dividing £100 by 13 hours means your hourly rate is £7.69 - over the NMW so they do not have to pay you anything more, and yes, your on call time is, on that basis, unpaid.

But if your pay was £7.00 per hour: 10 hours times £7.00 equals £70 wages. Divide £70 by 13 hours, and you get an hourly rate of £5.38. That is below the minimum wage, which for 13 hours working time is £80.47, so the employer would have to top up the wage by a further £10.47 to meet the requirements of the NMW.

However, please note that my assumption was correct - you are not an employee. Or at least, that is the position unless you can prove otherwise, which I will come back to. You are still entitled, as a worker, to the NMW. But workers with zero hours contracts are not employees and cannot make claims of unfair dismissal to an employment tribunal.

Also, my company has compulsory staff meetings once every month for 3 hours to go over upcoming events and also training both behind the bar and general processes. I know that employees by law are meant to be paid for any training they do but we're not and are told we don't need to be paid as it is a meeting and not training. If anyone doesn't attend, they are given a disciplinary, despite not being paid. Hmm - you know that employees are not entitled by law to be paid for any training they do? Which kind of ruins your argument! But the same applies as I have said above. Working hours are the things that count, and both training and meetings count as working hours, so the relevant argument is National Minimum Wage, as above. However, an employer cannot discipline someone who is not an employee. There only recourse is to refuse to provide further work. Only employees can be disciplined.


Finally, do I have to be working there for a year before I mention anything either to them or any authorities? I am not overly concerned about my personal circumstances regarding these issues but I believe the company should be reprimanded for any wrongdoing.

It is rather moot when you mention it - you are not an employee and cannot claim unfair dismissal no matter how long you work there. Your only recourse is to claim the money that you are owed, and it is likely that the employers response will be to fail to offer you any further work. Or, if they do not know who reoprted them, possibly pick you all off one by one.

As a general rule, to claim unfair dismissal, you must have one years continuous employment - with absolutely no breaks of one week or more; or two years if your employment began on or after 5th April 2012. If you could prove that a dismissal was as a result of asserting a statutory right to be paid the national minimum wage you would not need a qualifying period. BUT, first you would have to demonstrate that the zero hours contract in inapplicable and that you are an employee and not a worker, because these are claims only employees can make.