Onging Issue With Regards Employment Contracts

[PaulieP]

Hi guys

Thanks for all you help and advice with regards my last post. Very helpful.

I need your help again if you could?

You may remember, we run a shift pattern of 12hrs, 4 on, 4 off. Turns out all the contracts say hours are an average of 40hrs per week over 16weeks. We actually work an average of 42hrs over 16weeks. I dont know why but this has gone unnoticed by lots of people for many years. The whole department are now going to formally request the payment of those unpaid hours. We have a draft letter for each person to sign and hand in to HR. FYI ... a former employee has already been through this process and the company paid them the hours owed.

I would welcome any feedback on any glaring errors, or additions needed etc. on the letter below ...


I work in Member Services on a 12hr shift pattern of 4 shifts on and 4 shifts off. Section 8.1 of my employment contract states that I will work, ‘an average of 40 hours per week over a 16 week period.’ However, taking any concurrent 16 weeks from my shift pattern I actually work an average of 42 hours per week.

I believe I am owed unpaid overtime for the duration of my employment covering this shift pattern. As you will be aware, the law states all overtime payments should be made within 28 days and I believe [the company] has been remiss in not making these payments. Furthermore, I believe [the company] has been negligent with regards to the calculation of average working hours per week as stated in my contract.

I am aware that section 6.3 of my employment contract states ‘your salary is taken to be inclusive of any reasonable overtime you may be required to work in excess of a 40-hour working week’, however, I find the habitual, weekly excess to be far beyond what is perceived as reasonable.

I write to request the following:

• The calculation and payment of the extra hours worked up to the date of a complete and successful resolution of this issue.
• The standard overtime rate to be applied to the extra hours worked.
• A reasonable rate of interest to be added for any payments not made within the statutory 28 days.
• An adjustment to my salary and contract to take into consideration the extra hours to be worked in future.

I would like a response within 7 days of receipt of this letter and a full and satisfactory resolution within 28 days of receipt of this letter.






Thanks in advance ... Paul

[Sidewinder]

I am confused...

I thought that your previous thread said that you have been working 35 hours a week but have been paid for 42 and that you were worried that the new management would notice that you are working for less hours than you are contracted?

Anyway - although the letter will certainly get them thinking (although I am not certain that the law says that overtime must be paid within 28 days), I hope that they do not think too long and hard over it. Just remember that custom and practice works both ways and that if you have been working in excess of your contracted hours without raising a grievance at the time, the employer can quite correctly deem that you have accepted the arrangement. It would probably take a lot of time and legal expertise in contract and employment law to challenge that one. Also, you could leave yourself wide open to the employer also saying "actually you are right - thank you for pointing it out, but we are now going to propose changing your contracted hours (either to 35 or 42)". Of course you would not be obliged to accept the change, but the employer could then terminate your existing contract and offer you re-employment on the new terms, leaving you out of a job and having to sue for breach of contract.

I appreciate that if you have worked the hours then it is right that you should be paid for them, but why has this only just been noticed?

[PaulieP]

Yes sorry...when I said we, I mean my Team ... they still work the 12hr 4on/4off shift...plus up 'til Feb I did too.

I only know that the law states the 28 day rule for overtime due to a staff member bringing it to the companies attention in a disciplinary ... and he referenced it.

I understand completely the position I am in with regards my previous post and I think the 4 of us shift managers will probably take a different tack in approaching this, but our staff do deserve the pay they are owed I believe.

To be honest, I think it's only just been noticed because:

1. the previous employee who successfully got the extra pay had a grievance and went thru his contract with a fine toothed comb.
2. also, the company have been...shall we say a bit sly of late and staff are unhappy.

The company has a habit of changing job descriptions and making the current staff re-apply for the jobs...hoping to get rid of the bad and keep the cream...however, this spectacularly back-fired when used with the IT dept; only the bad reapplied and the rest took the pay-off.

Anyway Sidewinder, sorry for the confusion I caused and thanks for the advice...again.

Paul