Deductions for non-existent breaks

Andy2011

scheming_gypsy wrote: »

but they're only finding out they're working 6 hours when it goes past 12am. The additional is overtime if and when it happens so if they took a break half way through their shift they wouldn't have earned it some days. There's the chance they could be out at 11:55pm

they're on a zero hours contract, so not sure how that would work.

I've never heard of a zero hours contract - that would effectively mean you have a job, but can not expect to know how long you may be working.. one second:

A zero-hour contract (or zero-hours contract) is a recent type of contract under which an employer does not guarantee the employee a fixed number of hours per week. Rather, the employee is expected to be on-call and receive compensation only for hours worked.
Sutherland and Canwell have defined zero hour contract as an arrangements between an employer and an employee who has agreed to be available for work as and when required, therefore no particular number of hours of times of work are specified.I]citation needed[/I Zero hour contracts may suit some people who want occasional earnings, but they do run the risk of being misused, for instance when employees are asked to stop work during quiet periods but remain on the premises in case they are needed.
In the United States, under the National Minimum Wage Regulations (1998), workers operating under a zero hour contract on stand-by time, on-call time and downtime must be paid the national minimum wage, provided they are work for. Similarly, this amount of time on premises is likely to count as working time under the Working Time Regulations (1998, 1999, and 2002) provided the worker is required to be on-call at the place of work.


That's from trusty old wiki - it sounds like BS to me. But at the end of the day, if you knew you were signing a zero hours contract, you should have done the research first on what it means. (Well I would have, but only because I have never heard of something so ridiculous). To me, it doesn't sound like you can do anything, you have an agreement to work as per the contract sets out - if you aren't happy, there doesn't seem to be much you can do about it, as the "zero hours" thing is a stitch-up from the outset. Though you would have to raise real questions about your eligibility, hours you do work etc, as I do not think you could put a person on a zero hours contract, ask them to turn up for 8 hours a a day everyday, and run things on a "zero hours" basis, when you are clearly full time (or part time in your case). Tot up the hours you work, and take it to a solicitor, I would imagaine if it's more than 16 a week (part time eligibility I think), you would need a different contract, but if you have only been at the job ten minutes, you're probably best looking for another job - while you work of course.

SarEl

Wow. I wasn't aware that I was all that old. But if zero hours contracts are "recent" then I must be older than I thought. They have been around since Victorian times! And in fact were the most common form of employment in the early industrial periods.

But I am afraid that a zero hours contract is a zero hours contract - it never creates a right to hours, no matter how often or how long you work for an employer. The NHS has been using them for decades and some of their staff have been on them for decades! You might want a different kind of contract, but if wishes were horses...

Andy2011

SarEl wrote: »

Wow. I wasn't aware that I was all that old. But if zero hours contracts are "recent" then I must be older than I thought. They have been around since Victorian times! And in fact were the most common form of employment in the early industrial periods.

So the working time directive does not apply? At all? Regardless? They could ask you to turn up at 10am, and work you through to 10pm, as they please?

Mark_h_4

Question:

At a call centre, staff are only paid for time spent on phone calls on a zero hour contract, and not time spent talking to supervisors etc. Is this lawful?

Answer:

The concept of a zero hour contract is open to challenge. Arguably if in practice a worker works at least (say) 10 hours week in week out, then by custom and practice arguably the employer has an obligation to offer the worker you that number of hours work every week and you have an obligation to work it.

All workers have the right to the National Minimum Wage for hours worked. Under the Working Time Regulations, ‘working time’ means any period during which [a worker] is working, at his employer’s disposal and carrying out his activity or duties (reg 2). All three requirements must be satisfied in order for the period to constitute working time. For example ‘On-call’ time is working time where a worker is restricted to their work place but not in circumstances where the worker, whilst on-call, is free to pursue leisure activities. (See Sindicato de M!dicos de Asistencia Publica (SIMAP) v Conselleria de Sanidad y Consumo de la Generalidad Valenciana: C-303/98 [2000] IRLR 845, ECJ). Article 2(1) of the EU Working Time Directive appears to require three elements to the definition of working time—

(1) working,
(2) at the employer's disposal,
(3) carrying out the activity or duty.

The government suggests that a lunch break will not be working time unless it is designated a working lunch. By way of example, Time spent travelling to and from the place of work is unlikely to be working time in practice but the worker who, for example, spends the journey on his or her mobile phone contracting business (aside from the commission of any offence under road traffic legislation) will, it is suggested, be working to the extent of satisfying the definition of the ‘working time’ particularly if the job, to the employer’s knowledge, necessarily involves this.

It would appear likely that activities such as visiting the toilet, getting a glass of water, sending a fax or walking over to a supervisors desk are all part and parcel of your normal work. Assuming that is correct all such activity reasonably connected with duties at a telephone call centre should therefore count to the calculation of ‘working time’ This should therefore count towards the calculation of hours worked and therefore the calculation of your pay.

Last reviewed: July 2010.

SarEl

Andy2011 wrote: »

So the working time directive does not apply? At all? Regardless? They could ask you to turn up at 10am, and work you through to 10pm, as they please?

Now did I say that? The WTD applies to any qualifying employee. A zero hours contract doesn't change that. But this thread has become a convoluted mess because we are wondering all over the place.

The OP is an employee. Full stop. On occasions the OP's working hours exceed 6 hours - at which point by law they are entitled to have a break - that break being unpaid unless otherwise stated by contract. The employer is required to ensure that they are able to take the break to which they are entitled. And to treat the wage as if that break has been taken. The employer is not required to make them tahe a break - only to not prevent then from taking it. It is an entitlement - entilement exist only in the exercise of them by the employee. Just like you are entitled to 28 days annual leave and your employer must not prevent you from taking them - but they are not required to force you to take them!

So the OP can take a break. They will not be paid for the break, and they can then resume work and go hone ten minutes later if that is when they have finshed work. But they still won't be paid for the break, and that is what the OP wants - to be paid. That isn't going to happen. If the employer did do that it would in fact be what the employer is saying they don't do (by implication) - refusing the entitlement to a break!

Mark_h_4

SarEl wrote: »

So the OP can take a break. They will not be paid for the break, and they can then resume work and go hone ten minutes later if that is when they have finshed work. But they still won't be paid for the break, and that is what the OP wants - to be paid. That isn't going to happen. If the employer did do that it would in fact be what the employer is saying they don't do (by implication) - refusing the entitlement to a break!

I thought what OP was saying was that they are being deducted for breaks they arent taking? They are asking for breaks being denied them and having pay taken away anyway.

SarEl

Mark_h wrote: »

Question:

At a call centre, staff are only paid for time spent on phone calls on a zero hour contract, and not time spent talking to supervisors etc. Is this lawful?

Answer:

The concept of a zero hour contract is open to challenge. Arguably if in practice a worker works at least (say) 10 hours week in week out, then by custom and practice arguably the employer has an obligation to offer the worker you that number of hours work every week and you have an obligation to work it.

All workers have the right to the National Minimum Wage for hours worked. Under the Working Time Regulations, ‘working time’ means any period during which [a worker] is working, at his employer’s disposal and carrying out his activity or duties (reg 2). All three requirements must be satisfied in order for the period to constitute working time. For example ‘On-call’ time is working time where a worker is restricted to their work place but not in circumstances where the worker, whilst on-call, is free to pursue leisure activities. (See Sindicato de M!dicos de Asistencia Publica (SIMAP) v Conselleria de Sanidad y Consumo de la Generalidad Valenciana: C-303/98 [2000] IRLR 845, ECJ). Article 2(1) of the EU Working Time Directive appears to require three elements to the definition of working time—

(1) working,
(2) at the employer's disposal,
(3) carrying out the activity or duty.

The government suggests that a lunch break will not be working time unless it is designated a working lunch. By way of example, Time spent travelling to and from the place of work is unlikely to be working time in practice but the worker who, for example, spends the journey on his or her mobile phone contracting business (aside from the commission of any offence under road traffic legislation) will, it is suggested, be working to the extent of satisfying the definition of the ‘working time’ particularly if the job, to the employer’s knowledge, necessarily involves this.

It would appear likely that activities such as visiting the toilet, getting a glass of water, sending a fax or walking over to a supervisors desk are all part and parcel of your normal work. Assuming that is correct all such activity reasonably connected with duties at a telephone call centre should therefore count to the calculation of ‘working time’ This should therefore count towards the calculation of hours worked and therefore the calculation of your pay.

Last reviewed: July 2010.

The problem is twofold - potted law is useless, and this has no relevance to the original question!

SarEl

Mark_h wrote: »

I thought what OP was saying was that they are being deducted for breaks they arent taking? They are asking for breaks being denied them and having pay taken away anyway.

The employer has not denied the entitlement to breaks. They have a nice big shiny notice saying that after six hours employees are required to take a break! That is not denying then the right to their entitlement. The employer is entitled to treat a break as taken, whether the emploee takes it or not, because the employee should take. As far as I can see from the thread the OP has never said that they wish to take their break and actually been refused. And even if they were - that is a matter under the WTD - they still aren't entitled to the pay instead.

The OP wants paying for their "break" - they can't have that. They can only have their break.

Andy2011

SarEl wrote: »

Now did I say that?

No, but you did mention the Victorians!

SarEl

Andy2011 wrote: »

No, but you did mention the Victorians!

No - the Victorians definitely didn't have a working time directive

I was referring to the definition of "recent" - zero hours contracts may not have been called that in those days, but they are one of the oldest forms of contract! Just like what people call "permanant" contracts aren't permanant at all. These are just words we use to decsribe certain features of a contract. If I were to call a contract "casual" - most people would know what they think that means - it's another way of describing a zero-hours contract. It just means that you work when the employer wants you to. Technically you have the right to refuse work too, but in pratice it rarely works this way!