Working hours

flea72

Might be a bit long winded, as have tried to give all info. the formal Q is at the end

My OH’s contracted hours are 6:30-16:30, we thought he had a 20 min lunch break, but according to his latest contract, it seems he can take anything from 20-60mins (the wording is a bit funny regarding the lunch-break, it seems its length varies, depending on whether you have worked a 37 hour week or not). The length of lunch-break is not monitored.

Once he has completed the job, he is free to go home, so he only takes 20mins break, and slogs to finish early. Terms of his contract state ‘task and finish’ so its never been an issue. There would be the odd day where machinery would break, so he would have to stay past his contracted finish time, but this was a rarity and never more than 30mins past the contracted time.

However, his employers have now changed the contract, so that noone can go home until everyone is finished. so if someone takes an hour lunch, or drags their feet, all staff have to stay. The hours also now say 6:30 til approximately 16:30. But how late could ‘approximately’ be?

There is no additional pay if he goes past 16:30, as his employer says the average of his weekly hours should still total 37hrs, as there may sometimes be a day he finishes before 16:30, and he can go home and still be paid, as though he has worked the full day.

Unfortunately, there are other staff who work slowly, take an hour lunch and are happy to stay til 6pm, so OH is now forced to pick up their workload on top of his own, plus finish later too.

Tbh im just wondering if an employer can make you stay later than your contracted hours, and that they can get out of paying you for extra time, if it takes you over your contracted total hours. Im also confused about the variable lunch, why would an employer allow staff to choose the length of their break then penalise those who take a shorter one, by making them stay later to pick up the slack?

Tia F

suki1964

With those start and finish times, its a 10 hour day, ie: 50 hour week

Minus lunch breaks to make it a paid 37 hr week means your husband must take 13 hrs a week break, or take 5 hours of lunch and finish 8 hours a week earlier at least


If he is working more then 37 hours, and all he is being paid for is 37 hrs, then he needs to bring this to his employers attention and either ask for his hours to be paid, or for him to be as diligent as the other employees seem to be, and only work the 37 hours

flea72

Sorry, he does a 4 day week

suki1964

In our place of work, the hours are averaged over a month

So everyone ( apart from me as I chose a ZHC ) gets paid their contracted hours each week ( we are on weekly pay ) if they work them or not

Thats because some weeks they get to finish at lunch time a couple of days a week, other weeks they may get a few late days, we can now and then work 14 hour days

Where I work those that are on contracted hours do get overtime, but a month in arrears, to allow for the weekly adjustments in hours

If your husband is not getting paid for any extra hours hes working, then its up to him to keep a tally on his hours and work only the hours he is being paid for

We clock in and out. All the contracted staff keep a note on their phones of their in and out times to ensure their overtime payments are paid correctly. They also have access to their own time sheets if they have any queries

Blatchford

One could argue that this is rather clever of the employer, as they've just made the entire workforce accountable for making sure that nobody drags their feet! Not a policy that I'd recommend, as it can give rise to bullying, but certainly a strategy that is lawful.

Your husband is contracted to work 37 hours each week, on average. Provided the employer pays him for those hours, they are entitled to require him to be present in the workplace. Unless he is paid by piece work, which he patently isn't, then he isn't paid to produce a specific quantity of work, but to work a specific number of hours. Therefore, it isn't a case of "i've finished my work so I should be able to go home". There's no such thing as "my work", just work the employer requires doing. He's being told that he must do work the employer requires doing. So that's legal. It's maybe not "fair" but I'm not going to comment on that because that's irrelevant.

The issue then is whether he can be made to stay beyond 16.30, and the wording of the contract suggests that he can, because that's what it says and he's accepted that contract by working it. And provided that his hours do average out at 37 hours per week, then yes, they can insist on it. In fact, provided the contract allows for unpaid overtime, and that overtime does not take the hourly rate below the minimum wage, then they can even insist on some unpaid overtime. So there isn't an automatic right to paid overtime.

I'd think this isn't the way to retain your best workers, personally. The best will leave, and the ones who play the game probably won't, so eventually you end up with a majority who drag their feet and take long lunches, at which point the employer will have to do what they perhaps ought to be doing anyway and deal with the problem of people who don't work very hard. But that's a different story. If your husband objects to working 37 hours then I'm afraid that since that is what he is being paid to work, he needs to find another job. Probably not the answer he wants, but realistically you aren't going to get a different one. He has no legal right to insist that he gets to only do what he considers to be "his work" and then go home early.

nicechap

Just to add that if the overtime (however infrequent) is compulsory, that will increase the annual leave entitlement, the company may not have taken that into consideration when designing the new contract.

Is everyone in favour of the new approach? Have the union been consulted/ involved?

https://beta.acas.org.uk/checking-holiday-entitlement/calculating-holiday-pay

Blatchford

nicechap wrote: »

Just to add that if the overtime (however infrequent) is compulsory, that will increase the annual leave entitlement, the company may not have taken that into consideration when designing the new contract.

Is everyone in favour of the new approach? Have the union been consulted/ involved?

That's not correct. It doesn't increase the annual leave entitlement unless the employee is part-time. Full time employees don't get extra holiday entitlement for working overtime. 5.6 weeks, or the contractual entitlement is what full time workers are entitled to. Just because the posters husband works four days doesn't make him part time. 37 hours would be a full time job in many places and four day shift patterns are not uncommon.

Regular overtime payments may increase the amount of holiday pay, but doesn't seem to be the case here, and the rules are potentially complex.

flea72

Blatchford wrote: »

If your husband objects to working 37 hours then I'm afraid that since that is what he is being paid to work, he needs to find another job. Probably not the answer he wants, but realistically you aren't going to get a different one. He has no legal right to insist that he gets to only do what he considers to be "his work" and then go home early.

He isnt going home early. If he only takes a 20min break and leaves at 4pm, he has completed 37hrs. He also has no problem staying til 16:30 and helping others finish (but this would then be 39hrs worked). What he does have a problem with, is an undefined finish time, that is totally reliant on how fast his colleagues work, and how long a break they decide to take. What happens if he regularly stays til 6pm, and there is no counterbalance of an early finish time. Does he just suck up that he has worked a 44hrs week, for no extra renumeration, especially as we would now have to pay for additional childcare?

He worked a 5 day week when starting the job, but the employers went to a 4 day week to stop having to pay bank holiday pay. They just spread the workload over 4 days, but totally didnt factor in that as its a physical job, the productivity would drop off working a longer day. Hence why very few people are finishing on time. Also they use alot of agency staff to cover sickness/annual leave, and if you dont know (or are prepared for how physical the job is) then they are alot slower than permanent staff, so add at least an hour to the day. Is a 7pm finish at no notice still acceptable?

Tia F

Blatchford

I realise that this isn't "fair" in your books, but there is a difference between what you think is fair and being able to stop an employer doing it. I'll assume from the lack of a response to another question that you have no union. Too late now, but it would seem that was a mistake.

flea72 wrote: »

He isnt going home early. If he only takes a 20min break and leaves at 4pm, he has completed 37hrs. He also has no problem staying til 16:30 and helping others finish (but this would then be 39hrs worked). What he does have a problem with, is an undefined finish time, that is totally reliant on how fast his colleagues work, and how long a break they decide to take. What happens if he regularly stays til 6pm, and there is no counterbalance of an early finish time. Does he just suck up that he has worked a 44hrs week, for no extra renumeration, especially as we would now have to pay for additional childcare?

This has already been answered. He cannot leave at 16:00 because his employer has already set his working hours as being required to be at work between certain hours. But that does not mean that he is entitled to walk out at 16:30 on the dot. Nobody can answer a question that starts with "what if?" That hasn't happened. The employer says that the 37 hours will be averaged and he won't have to work more than 37 hours. Until such time as that is proven not to be the case, there is no "what if?" Many workers have no defined finish time, and very few would expect to walk out on the dot anyway. That doesn't mean that they should have to work many more hours - but that has not happened yet, and the solution to that problem is something that cannot be explored until it happens.

Employers don't care about your childcare. What your personal lives look like doesn't impact on the profit line.

flea72 wrote: »

He worked a 5 day week when starting the job, but the employers went to a 4 day week to stop having to pay bank holiday pay. They just spread the workload over 4 days, but totally didnt factor in that as its a physical job, the productivity would drop off working a longer day. Hence why very few people are finishing on time. Also they use alot of agency staff to cover sickness/annual leave, and if you dont know (or are prepared for how physical the job is) then they are alot slower than permanent staff, so add at least an hour to the day. Is a 7pm finish at no notice still acceptable?

As I said, "what if?" doesn't count. And even if you don't work on a bank holiday you still get paid for it. All employees are entitled to 28 days statutory annual leave. That may include bank holidays, but if you don't work bank holidays you still get the equivalent leave entitlement. So going to a four day week would have made no difference to what they pay.

The obvious answer is that he either starts taking longer lunch breaks, or he finds another job. I know that you don't think it's fair, but it's legal, and until such time as the employer is proven to be operating otherwise, there is nothing he can do about it. As I have said, even unpaid overtime may be legal if the contract allows it and it doesn't take the wage below the legal minimum. Even if he started walking out at 16:30, what do you think will happen? He'll get sacked.

Of course, if the whole workforce via their union take action, that might result in change. If they stick together even, it might. But I doubt that will happen. You want someone to tell you that the employer has acted illegally, but nothing in law says they have (yet), and even if they do, he is going to have to stick his head over the parapet and do something about it himself. I get he works hard. I get it isn't fair. Life isn't. Employment certainly isn't.