Quick employment contract question need urgent answer if possible!xxx

leajones86

Hi there, I believe I am correct in the fact that if you are contracted to for eg. 38 hours a week that the employer must pay you your contracted hours even if they do not ask you to work them? can anyone confirm this for me and possibly point me in the direction of the legislation if I am in fact correct?

My husband who is a chef is contracted to 38 hpw, has been working alot more as opted out of the maximum hours due to nature of work, he recently asked for flexible working hours due to medical reasons and advised he would be happy to keep to his 38 hours and was not asking for a reduction in contracted hours, he was given 38 hrs rota per week as a set rota /days etc. they have been changing it constantly and now have dropped his hours to 15 which we cannot possibly live on, but he is contracted to 38, any advice appreciated, thanks x

mum2one

I'm pretty sure if your husband has a 38hr contract he is entitled to that, what the employers might try to wiggle out by saying he had asked for flexi hrs and that is all they can do to accommodate him.

I don't know the ins and outs of the statue, but I would do a search on acas website xxx

Another_not_new_user

Sorry, but he has done this to himself. The two things - flexible working and opt out - are entirely different. Flexible working is flexible on the basic hours of work. Nothing to do with overtime. So he couldn't "advise" the employer that he was happy to keep his 38 hours - he actually asked them to allow flexible working on the 38 hours. They have therefore, technically, agreed to do as he asked.


At this stage I think he has to decide what it is that he is asking the employer for, and why. The opt out simply means that he can decline any work over 48 hours per week - not that he can decline overtime altogether. If there are sufficient medical grounds, which would probably need the evidence of a doctor, then he can ask not to be given any overtime at all; although, as you recognise, the nature of his work does not mean that this is achievable, and it may throw into question his employment. Even if overtime is not compulsory ( it may be stipulated in the contract), it is not quite so easy as simply saying no. But there isn't enough information to properly advise on this here.


Then there is flexible working - which is a request to vary the contract. As soon as he asked that he asked for the basic hours to be variable, and the employer has taken him up on it. The employer is entitled to refuse such a request, but it appears that they didn't - but he did not pin down exactly what he was asking for, so he left it open ended as to how many hours he would be working as part of this "flexibility". Him saying he would work 38 is not the same thing as the employer agreeing to that. And the employer was never required to agree his request at all. In the end they only have to consider a request within their own business requirements, and if it doesn't suit those requirements then they can refuse.


So, if it is not already too late, your husband needs to be able to achieve an agreement as to exactly what he was asking for - and he needs to be able to present a good case for why this is necessary. Simply saying it is for medical reasons is not sufficient - what are these medical reasons, do they constitute a disability, is this a permanent variation of contract or something that he needs for a specified period of time to support him? However, the employer has already agreed to flexible working already - they do not have to reconsider his request at all, so the better the case he can put, the more likely they are to agree. But in the end, flexible working requests are not about what he wants or what you can live on - the employers requirements are paramount, and if what he wants does not suit their business model, that may leave him with only hard decisions about his future in this employment.

Takeaway_Addict

Has he worked there over 2 years?

ohreally

Why didn't he rescind the opt-out that he signed, work 38 hrs and politely decline any overtime?

Marktheshark

Takeaway_Addict wrote: »

Has he worked there over 2 years?

This is the most relevant (real world) question.

suicidebob

Another_not_new_user wrote: »

Sorry, but he has done this to himself. The two things - flexible working and opt out - are entirely different. Flexible working is flexible on the basic hours of work. Nothing to do with overtime. So he couldn't "advise" the employer that he was happy to keep his 38 hours - he actually asked them to allow flexible working on the 38 hours. They have therefore, technically, agreed to do as he asked.

Not sure where you're getting this from. The OP specifically stated he didn't ask for a reduction in hours and wanted to remain on 38 hours per week. 15 is technically less than 38.

The issue here is that the chef was on a 38 hour contract but was working probably 50+ whilst still getting paid for 38. He wanted to work 38 and be paid for 38.

Another_not_new_user

Marktheshark wrote: »

This is the most relevant (real world) question.

Not necessarily, although obviously length of service may be relevant IF he has a claim to unfair dismissal - which currently it would appear that he does not because the employer has actually given him what he asked for. The fact that he did not understand what he asked for doesn't matter.


That is why I suggested that the medical reason claimed may actually be relevant - if this is a disability then it becomes a case of reasonable adjustments. It still isn't an open and shut argument. But it does not require two years to make a claim - IF there is a claim that could be made. Because that still wouldn't change the fact that the employer appears to have done what was asked and given flexible working. It would appear that it was never agreed what that meant.

Undervalued

suicidebob wrote: »

Not sure where you're getting this from. The OP specifically stated he didn't ask for a reduction in hours and wanted to remain on 38 hours per week. 15 is technically less than 38.

Whilst that is probably what the OP's husband intended the problem is that he asked for flexible working. What he probably intended was that he worked a fixed 38 hours and then had the option of accepting or refusing any overtime as he pleased. Whilst that might be "flexible" for him it is not for the company.

Sadly I doubt his has any proof to back this up and has compounded the situation by accepting far fewer hours for several weeks. Effectively he is now being treated as if he is on a zero hour contract.

As ANNU has said, it may not be easy to extricate himself from this situation unless increasing his hours back to 38 happens to suit the company.

Edit: Cross posted with ANNU

Another_not_new_user

suicidebob wrote: »

Not sure where you're getting this from. The OP specifically stated he didn't ask for a reduction in hours and wanted to remain on 38 hours per week. 15 is technically less than 38.

The issue here is that the chef was on a 38 hour contract but was working probably 50+ whilst still getting paid for 38. He wanted to work 38 and be paid for 38.

No - "he recently asked for flexible working hours due to medical reasons and advised he would be happy to keep to his 38 hours and was not asking for a reduction in contracted hours". That is not actually the same thing as saying he wished to work his contractual 38 hours (which would not have required a flexible working agreement at all). Advising your employer that you would be happy to continue working 38 hours is not the same thing as saying you wish to work only 38 hours. And saying that you are not asking for a reduction is not the same thing as not getting one. He asked for flexible working, and got it. The employer has technically acted within the terms of a request made by the employee to give flexible working.


There is nothing said at all about how many hours he was being paid for - the request was based on a medical reason and nothing to do with pay.


And PS, sorry I cross posted with Undervalued, but I agree with the statement they have made. Asking for the wrong thing is, unfortunately, your own fault, and you cannot blame the employer for that.