Furlough

Confusedfurlough

Please help because I can't get any concrete answers. I work for a big company in one of their small shops and I have been there 3 years. I am contracted to ten hours but I have always done more so my pay varies. I earnt just under ten thousand last tax year and I am on NMW and the same for any extra hours I do. I never feel forced into doing extra as I am grateful for any hours but we just come in and check the rota and follow it and any overtime is shared out fairly. I checked my payslip and I have only been paid 80% of my ten hour contract so a big drop. I was expecting them to go on my earnings. I have emailed HR who are working from home and they said my pay is correct and they are following guidelines. They say that the overtime is discretionary but from what I have been reading, if it is regular it can be non discretionary and it can become part of my Contract and override the ten hours as it has become the normal thing to do. I have rarely worked ten hours in a week.i have told HR my concerns and I have asked for a copy of my contract to be emailed to me but she says she dosnt have it and the person that does is on furlough. Also when I got my payslip there was a note underneath saying due to being on furlough the NMW won't increase untill we are off furlough. They have took 20% off the old rate at 8.21.shouldnt it be taken off the new rate at 8.70.i understand by taking 20% off it would bring me below the NMW but surely it should be took off the new rate? So sorry about the big essay but I just wanted to be clear on this

Jeremy535897

You should be treated as a variable pay employee. Guidance says:

"What to include when calculating wages

The amount you should use when calculating 80% of your employees’ wages is regular payments you are obliged to make, including:

• regular wages you pay to employees
• non-discretionary overtime
• non-discretionary fees
• non-discretionary commission payments
• piece rate payments"

It also says:
"Choose the calculation you think best fits the way your employee is paid. For example, if you pay your employee a regular salary, use the calculation for fixed pay amounts. HMRC will not decline or seek repayment of any grant based solely on the particular choice of pay calculation, as long as a reasonable choice of approach is made."

You are not paid a regular salary. Past overtime can be taken into account. Discretionary overtime is when you work extra hours and are not entitled to be paid for them, but the employer decides to pay something anyway. If you are contractually entitled to be paid for each hour you work, that is not discretionary overtime.

The guidance is at 
https://www.gov.uk/guidance/work-out-80-of-your-employees-wages-to-claim-through-the-coronavirus-job-retention-scheme

This only deals with what they can recover. Your contract of employment should have been amended when you agreed to furlough. What that says is what you are now entitled to be paid.

The increase in NMW is ignored, because you are not actually working, unless you are required to do training.

bradders1983

No, the new NMW does not apply because a) furlough amounts are based on historical salaries and b) you are working 0 hours so NMW does not apply.

Confusedfurlough

Thanks for reply. I have got further advice on this about employment law and if overtime becomes a regular thing then the code of practice can come into place when overtime can become part of your contract and override the ten hour contract even if it is not written down. It just becomes the normal thing to do. I have emailed head office again and explained why my overtime is non discretionary as when I do that overtime I expect to be paid for it so it is not at the employers discretion whether they pay me for it or not, they are obliged to. I used an example and said if I was salaried at 40 hours a week and had a set wage but I ended up doing 50 then it is at the discretion of the employer whether they pay me for that overtime or not. There needs to be me more clear advice on this as there must be alot of people having the same problem

Jeremy535897

Confusedfurlough said:

Thanks for reply. I have got further advice on this about employment law and if overtime becomes a regular thing then the code of practice can come into place when overtime can become part of your contract and override the ten hour contract even if it is not written down. It just becomes the normal thing to do. I have emailed head office again and explained why my overtime is non discretionary as when I do that overtime I expect to be paid for it so it is not at the employers discretion whether they pay me for it or not, they are obliged to. I used an example and said if I was salaried at 40 hours a week and had a set wage but I ended up doing 50 then it is at the discretion of the employer whether they pay me for that overtime or not. There needs to be me more clear advice on this as there must be alot of people having the same problem

I wouldn't disagree with you on your last sentence.

Confusedfurlough

Yes definitely. Acas have emailed me a form to fill out but I couldn't submit it till I was actually paid my wages because it then becomes a legal matter. I really don't want it to get to that stage and really want it to be resolved. I have emailed headoffice so I will just have to wait for a reply