Working time directive question

buggy_boy

Ok so here is my situation.

I am contracted to work 9-5 with 30mins break 5 days a week, on top of this I do a 1 in 4 oncall which covers all the time im not working.

I get paid for being oncall and then paid extra for getting called out. because we have to work all day then often when oncall all evening into the night, if we work past 11pm aka more than 13hrs we are entitled to 11hrs rest period.

This rest period obviously over laps into my normal working day often, say for example I get home at 3am I would be on sleep until 2pm, my employer wants us to do this and has always paid us our normal 9-5 even if we are on stand down (rest period).

However my employer is now saying they dont have to pay me if I choose to take my 11hrs stand down for the time it interferes with my normal working day so in the example above I get home at 3am after working 18hrs I go on stand down until 2pm, the company is saying they want to then not pay me from 9am until 2pm.

Are they allowed to do that? There is nothing in my contract but the company has always paid it for decades.

I cant seem to find any information for my particular circumstance.

SarEl

Hmm - good one! I had to go re-read the regulations because I've never come across this exact question before. And I am afraid I think I agree with the employer. You are legally entitled to the rest break (probably - there actually are some exceptions for certain types of workers), but there is nothing to say that you are then entitled to be paid for time that you then aren't attending work because you are taking that break. It would appear from what you say that the copnay are changing the contractual term (albeit one established by custom and practice). You can object to such a change, but how far you would get I don't know. Somehow I think a tribunal would probably side with the employer in that you cannot reasonably be expected to be paid for time that you aren't working, but that is a best guess nased on very little information.

Mark_h_4

If you start work at 2pm. When do you work till?

buggy_boy

If I start work at 2pm im expect to finish at 5pm.

My issue with this is that if I dont get paid my normal shift I could in some circumstances for example being called out at 2am and working till 8am giving me 7.5hrs overtime (@1.25 pay) but then loosing 7.5hrs of normal shift so im effectively working silly those unsociable hours for nothing which I dont see the point.

Its a worry as I cant afford to lose all that money and I have to do a lot of driving for my work so it will mean I will have to forgo the 11hrs rest period and possibly be a danger to myself and others on the road. Could I argue that I am available for work but do not feel safe driving or at least driving long distances so will do admin work or any other work they can provide me with, im a mobile worker based from home.

buggy_boy

if I started at say 2pm could I request that my working day start then and I do 7.5hrs from 2pm?

SarEl

Yes - but you aren't working "overtime" if you aren't working half the day! And you can request / argue anything you like - but that doesn't mean the employer has to agree to it. You are not working these silly hours for nothing - you are working them for pay. The employer has utilised exactly the same argument in reverse - why should they pay you for hours that you are not working? I am afraid that whilst I can see your point that you are losing money, I can equally see the point that so is the employer, by paying for work that does not get done. You've had some extraordinarily good terms, but I cannot see how, in this climate, you can sustain an argument that says that you should be paid for nothing.

buggy_boy

Thats kind of what I thought, our only hope is after recently making loads of redundancies the company is heavily dependant on volunteers on top of oncall persons.

If they bring in this ruling nobody will be willing to do the overtime so they could end up in trouble.

Also we are unionised so anything like that would have to be agreed by the union which I dont think it would go down well.

I agree I can see the companys point of view its just a shame as I will not be volunteering for any extra overtime if they bring this in.

Cheers for peoples help.

ohreally

The regulation is silent on payment (inc compensatory rest). I know groups of workers within the same employer (same site), some get a full 11 hours paid break, which can result in an individual showing up for work late into the afternoon and ending the shift shortly afterwards on full pay, others don't get paid. It often falls to a managers understanding/ interpretation of what the law is rather than the spirit of the law.

buggy_boy

Ive not seen anywhere that this has ever been challenged I have a feeling the company have been very good by bringing it up in these economic times as I think it is more likely that the law would side with them.

DVardysShadow

On this issue, the argument is that you are contracted to work normal office hours. So if the employer does something like give you on call work, resulting in a rest requirement which eats into the next day, then you should not be docked pay for having to take rest during your normal day. Effectively that is what they are doing, docking pay for rest time.

Personally, I would not take the disruption to my life for what is effectively half time plus immediate time in lieu

DVardysShadow

buggy_boy wrote: »

Ive not seen anywhere that this has ever been challenged I have a feeling the company have been very good by bringing it up in these economic times as I think it is more likely that the law would side with them.

It is not a matter of law, it is a matter of contract.