Salaried working 55 hrs - job seekers available?

Beleroo

Just looking for some advice please.

My fella is currently working for a large pub group. He is Kitchen Manager. When he agreed to take on the job the kitchen was covered by 3 staff members and he was working at this time as kitchen helper. Subsequently he was offered the role of Kitchen manager and signed a contract which said he MAY be needed to cover up to 55 hrs per week.

In the last few months he has been working 55 hrs EVERY week and they have cut down on kitchen staff. He now works alone every day apart from weekends and bank holidays (on these days he has help for just 2-4hrs)

We now have a 4 week old baby girl and we never get any family time. He works 11am till 9 pm 6 days per week.

On his current salary and hours it equates to £6.40 hr (£6.31 is min wage for 25+)

He has approached his local manager and asked for an extra 1/2 day / 1 day off.... NO

He receives (like many in this industry , no extra pay for xmas, bank holidays or any overtime (as salaried).

He then said he would like to step down and re-take the role he previously had but his manager has said he will have to do the manager role till they find someone else (this may never happen as no one seems to want/stick to the kitchen work as it is SO DEMANDING),

Basically if anyone has any help or knows anything about rights etc that would be good... I've read the GOV website re the 48hr rule but don't know if this would apply if he signed a contract saying 55 hrs........

Having said that, I'm not sure if they were acting legally .... asking him to sign up to 55 hrs?

Bottom line is he is EXTREMELY stressed currently and has been signed off in the past few months (but not currently) due to this..

If he did give up his job, along the lines of stress with Doctors advice etc... would he be able to qualify for Job Seekers or any other allowances..

Beside myself with worry as new baby, lots of bills, new mortgage and a unhappy fella that's not working on all 4 cylinders (polite & fun way of putting it :(:(:(:( but very worried as my fella is at wits end )
Thankx xx

agrinnall

Can he not look for a similar job in a better managed environment where he wouldn't need to work so many hours? I think if he leaves there is a good chance that he won't get JSA straight away.

As to the legality of the 55 hours, it probably depends on exactly what he signed. I believe that anyone opting out of the WTD has to specifically do that, but it's possible that was included in the paperwork that included the 55 hours.

dancingfairy

Can he opt back in (or out whichever way it works) of the working time directive that he would have signed before?
In the short term this might help although he is probably best looking around for something else if he can.
df

Jonboy_1984

I would echo the thoughts of investigating the working time directive, even if he has opted out he can opt back in on a set notice period - https://www.gov.uk/maximum-weekly-working-hours/overview

Gigglepig

If he is not in control of his own working hours it sounds like the working time directive might apply, if so he can advise his employer that he is opting out.

More info here;
https://www.gov.uk/maximum-weekly-working-hours

If he is unsure whether this applies or needs support perhaps cab can help.

Beleroo

thanks agrinnall, dancinfairy,jonboy-1984 & gigglepig.. will go into CAB on Wednesday to discuss I think.... thanks for the help so far. Opting in/out (shake it all about lol) wasn't known to us (sorry naive & the job wasn't sold on THAT MANY HOURS)

paddedjohn

Cancelling an opt-out agreement

A worker can cancel their opt-out agreement whenever they want - even if it’s part of their employment contract.
They must give their employer at least 7 days’ notice. This could be longer (up to 3 months) if the worker previously agreed this in the written opt-out agreement with the employer.
The employer isn’t allowed to force a worker to cancel their opt-out agreement.
Example of opt-out agreement:
I [worker’s name] agree that I may work for more than an average of 48 hours a week. If I change my mind, I will give my employer [amount of time - up to 3 months’] notice in writing to end this agreement. Signed…………………………………… Dated…………………………………….

ohreally

"Workers may feel they are expected to sign an opt-out, it may be included as a standard term of employment contracts or it may be emphasised in recruitment, appointment and induction. Some employers may wrongly extend the opt-out to other issues like night work and rest periods, or insist on employees “opting in” to the working time limit.

None of these practices complies with the regulations and an employer is not allowed to sack or unfairly treat a worker (e.g. by blocking promotion) for refusing to sign an opt-out. They aren’t allowed to force a worker to cancel their opt-out agreement either. This reflects Article 18(1)(b) of the EWTD which required member states to ensure that no employer “requires” a worker to opt-out without their written agreement, that no worker suffers detriment for refusing to opt-out, and that employers keep up-to-date records.

Employers must take “all reasonable steps” to ensure that the 48-hour limit isn’t breached, and that may involve treating non-opted out workers differently.

Workers can cancel an opt-out agreement by giving at least seven days notice (or longer, for up to three months, if they agreed that in the written opt-out agreement).


The TUC has suggested a simple model letter for workers wanting to opt back in:

Dear Employer,
I wish to withdraw my opt-out from the working time limit set by the Working Time Regulations as I no longer wish to work more than 48 hours on average each week.
I would ask you to acknowledge this in writing and to let me know when this will come into effect. I look forward to discussing how my hours will be adjusted to take account of this.
Yours sincerely"

Beleroo

Thanks for the info and 1st stage is the opt out letter though I hold little to no hope.

Management have been unsympathetic and do not proactively look for (OR WE RECEIVE NO) suitable candidates.

main question is (as this could drag on for months..... as I know the post he applied for was vacant for several months)

If he did give up his job, along the lines of stress with Doctors advice etc... would he be able to qualify for Job Seekers or any other allowances..

Annisele

It's difficult to give a definitive answer about JSA.

Broadly, the JobCentre could apply a sanction if they think your OH has "left a job voluntarily without good reason". There's more information here.

I strongly suspect that if he left without doing absolutely everything he could to sort out the hours issue, that would count as "leaving without good reason" and he'd be sanctioned. If he was fired because he refused to work more than 48 hours a week (having given the appropriate notice) then I think he would probably be able to claim JSA - but if the employer has any sense at all the stated reason for firing him would be something else. He'd then have to try to show the real reason, and in the meantime he might not get any money.

Has he been employed for more than two years? If not, it makes it much easier for the employer to sack him. (Although from what you say, the employer wouldn't want to sack him as it's hard enough to find one person to do his job).

paddedjohn

Annisele wrote: »

It's difficult to give a definitive answer about JSA.

Broadly, the JobCentre could apply a sanction if they think your OH has "left a job voluntarily without good reason". There's more information here.

I strongly suspect that if he left without doing absolutely everything he could to sort out the hours issue, that would count as "leaving without good reason" and he'd be sanctioned. If he was fired because he refused to work more than 48 hours a week (having given the appropriate notice) then I think he would probably be able to claim JSA - but if the employer has any sense at all the stated reason for firing him would be something else. He'd then have to try to show the real reason, and in the meantime he might not get any money.

Has he been employed for more than two years? If not, it makes it much easier for the employer to sack him. (Although from what you say, the employer wouldn't want to sack him as it's hard enough to find one person to do his job).

Just to clarify, the 2 years only applies if he started with this employer after April 6th 2012, if before that date then he can still be got shut off but it is harder to do so.;)