unpaid overtime or not ????

[phill123]

hi everyone,

 

i amwriting on behalf of someone else. she has been working fpo rthe same company for 5 years her hours were 8 am to 2 pm three days a week until recently they had a new manager whihc saud thjat in order to be paid fully she had to work and extra one hour and a half per hour to have her break of half hour. althought she had before only 15 minutes break the new manager increase it to 30 minutes without her knowledge nor change of contract. but her manager kept insisting that she cannot be paid for this extra as she is contracted foir 18 hours a week her argumenrt is that well i have been working the same hours under the old manager for 4 years and i signed a contract which show that i am not doing that.

her manager threaten her that if she leaves ( even thought by her rota she has finished her shift ) then she will consider that she walked out . is this legal change the contractual hurs without contracrt ? if she has to sign it can she refuse it as thgi swill overlap onto other commitment?

[Sidewinder]

hi everyone,

 

i amwriting on behalf of someone else. she has been working fpo rthe same company for 5 years her hours were 8 am to 2 pm three days a week until recently they had a new manager whihc saud thjat in order to be paid fully she had to work and extra one hour and a half per hour to have her break of half hour. althought she had before only 15 minutes break the new manager increase it to 30 minutes without her knowledge nor change of contract. but her manager kept insisting that she cannot be paid for this extra as she is contracted foir 18 hours a week her argumenrt is that well i have been working the same hours under the old manager for 4 years and i signed a contract which show that i am not doing that.

her manager threaten her that if she leaves ( even thought by her rota she has finished her shift ) then she will consider that she walked out . is this legal change the contractual hurs without contracrt ? if she has to sign it can she refuse it as thgi swill overlap onto other commitment?

 

If I understand it correctly then this person currently works for 18 hours per week (3 x 6 hour shifts) and currently has a 15 minute break each day of 15 minutes. The new manager has said that if she wishes to have a break then she must extend her contracted hours to 19.5 hours and he will permit a 30 minute break each day?

 

The first point to make is that unless it is specified in her contract, then she is not legally entitled to the 15 minute paid break which she is currently taking. The law says that if the shift exceeds 6 hours only then is she entitled to a break of at least 20 minutes. If she is using a VDU then Health & Safety will recommend at least 5 minutes non screen time in every hour, but this is not a break entitlement and need only be doing other tasks rather than not actually working. It would appear that the new manager has got wise to the fact that your friend is taking a paid break to which she is not entitled and is trying to get the time back by extending the working day. For him to make the break unpaid is acceptable (although harsh and not particularly the actions of a caring employer) - he is after all paying for 6 hours 'work' per day, not 5 hours and 45 minutes. It would appear that he is trying to offset the impact of stopping the paid break by saying that if she agrees to make the time up, then he will actually allow her to take a 30 minute break rather than 15 minutes.

 

HOWEVER - in answer to the question as to whether he may do this in the way that you describe then in a word - No. Even if your friend's contract does not specify that she is permitted a break under the company's rules, then she may quite legitimately claim that it has become Custom and Practice that she takes such a break. In five years with the company, successive regimes have permitted her to take a 15 minute paid break. It has been accepted to the point where it has now become an implied term of the contract of employment. If the manager wishes to change this, then he would need to negotiate such a change, abiding by correct consultation and acceptable procedures. He cannot just change the rules overnight, nor can he discipline your friend for finishing work at her current finishing time. Any dismissal resulting from that course of action would almost certainly be unfair and there would be legitimate grounds to take action against the employer. There may also be grounds to claim discrimination if for example it could be proved that male colleagues enjoyed paid breaks for similar shifts which your friend is now being denied. For the employer it is a very dangerous route to go down without being absolutely spot on with procedure.

 

Best your friend read her contract front to back and see exactly what rules are in place for permitted rest breaks. After that record her grievance in writing that she is unhappy at the manager's attempt to fundamentally change her working hours without adequate consultation and negotiation. Explain that she has always been permitted this time in the past and cannot extend her working day due to other commitments. Put the ball in the employer's court to open a dialogue on the subject rather than for them to just change the rules as they see fit.

[phill123]

thankfro oyu rgelp i will pass on the message to her. however she did told to her managewr that she wasn't happy abotu that and she never asked about textending her break time for 30 minutes and was imposed on her. her contract inclde three shift of six hour per week excluding meal and refreshment break. however the manager allow himself t ophave cigareeter and refreshment break on top of his 30 minutes break /

 

anyway she was very upset yesterday as her employer want her to leave a he doesn't do staff motivation and tha raising an aggrievance is unprofessional. basicallly he was very dismissive and say that if it was up to him she won't have a break at all . although sher argued that it was the practice with the rpeviosu manager for the last five years. . anyway i suggest her thst might be construed as unfair dismiossal as t=her manger insulted her of maonkey that the shop is shxxe the staff are shxxxe and so forth .... what can she do now ?

[Ell-enn]

Hi there, although the Working Time Directive states that 6 hours isthe maximum you can be expected to work without a break, it is unreasonable for an employer to forbid the natural breaks that would be necessary to provide a comfortable environment i.e. going to the toilet, making a drink etc. which could easily add up to 15 minutes or more in 6 hours. If your friend has enjoyed a 15 minute break for the past 5 years with her manager's consent then the employer will have to negotiate new terms and conditions to change the status quo. Do you know if there is a grievance procedure in place? depending on the exact nature of pressure by this new manager on her - it could also be classed as bullying.

Can you give more detail pls.

 

Ell-enn

[phill123]

she made a complaint today to her boss butr she is waiting her decisions abourt if she want to leave. which i think is unfair dismissmal ?? the area manager only told her that if she want to go further then she will have to make a complaint in writing. that 's says a lot ? sorry she is very upset and crying i tried to conforrt her but it is very little i can do for her . any way thank you ..

[Ell-enn]

I think she should make the complaint in writing, this will ensure that things are done according to procedure - it would be best to follow it through to a conclusion. There is nothing to stop her looking for another job while this is going on, but at least she will have made an effort to engage the managementin sorting out the problem - this would be useful if she decided to take it further at a later date.

[cal37]

Well she has to put it in writing, if you ever wish to take the matter to a tribunal, you have to show that you followed the Disputes Resolution Regulations and Employment Act 2002 to the end.

[phill123]

she just doenm abotu a complaint in writjng but i think after five years of her life this is a disgracefull way to treat her, she is very profesional ... thank you for your help xxx

[phill123]

hi again after a long week she told me that she made a complaint to her area manager their answer this was due to a misunderstanding. anyway she made a formal complaint by writing. however they agree for her to retrun her normal shift only for this week but with no break whataoever.... mmm. vwery caring however he told her that her hours will change next week and that her 18 hours per week wil not be set anymore and her shift will vary form day to day. so she finished her today she has no idea when she is working next week and was told that her management will ring her soemtimes this week end ? is this legal ? can she refused that ?

[Ell-enn]

In her contract - where her hours of work are described - does it have a clause which says anything about the company reserving the right to alter her hours to meet the demands of the business?

[phill123]

her contract stipule that her hours will change from time to time and if it does she will receive notice inadvance. she has no problem form time to ttime but what she said is that form now on her hours will vary each week but she has no idea where and when so she will now at the very last minutes . is this fair, especially that she has other engagement that she has to attend this was never an issue before when her hours changed she knew it at laest a week in advance now she just received phone call and must drop everytinhg in order to sastify the need of the business ?

 

this one issues hat she has with many others for example she can't have a break while others can ?

[phill123]

she is about ot resign due to the fact that she still does't know her hours for this week ... anyway has she has been there now for four years ( she started in 2003 ) then she will give one week and the rest will be made up of the 4 weeks holidays she hasn't took but she had already book can she do that? when her last working day will be ?