Employment Advice needed - working hours and breaks

[leilani]

On behalf of my son, I am hoping that the knowledgeable people of CAG can help him.

 

My son has just started working for a company that owns chains of stores all over the country (was bailed out). He's been there just over a month and doing fabulous.

 

The background...he was head hunted so to speak from another store which he had been working on 4 hour contract for over 2 1/2 years not being able to find a job with longer contract hours until this job, he was very excited and snapped it up. He got the job, the manager who is east European and almost the same age (23) was very impressed by his knowledge and hired him, he was working the very next day!

 

A month in and there are some very strange things happening and I am not even sure he has a contract either.

 

In the first two weeks he was told that his break (lunch) was being reduced from 30 mins to 15 mins and he could not take it out the shop. I told him by law if you are working over 6 hours you are allowed 20 mins minimum and he was allowed to take it away from the premises. (I looked it up on Gov site).

 

The other day a few days before his monthly review, he had been told he could go take his break of 15 mins. He told his manager that by law it was 20 mins min, she was angry with him and went and called head office, she came back and said you take it but you will not be paid for it.

 

In the monthly review she told him that she was very disappointed and insulted by him raising this, and that there would be now no flexibility and that if he made any mistakes, late or whatever he would not reach past his probationary period. If he was a slacker I could understand him being reprimanded to make him fall in line.

 

However, he has exceeded nearly every day their expectation on sales, example he took 53% of sales when there was 3 people on. He sold 100% equipment insurance one day when his colleague sold none, and even got a huge sale from someone who could have got discount from another store but because his customer service is so good they preferred to buy from him. He even brought work home to rectify something for a customer whilst he was learning so she would not lose out and she was so happy with him, that she gave him and his colleague who did nothing but moan about this customer a huge gift wrapped bag of chocolates (i know because I shared them). He was even told that he would be suitable to take courses for managerial position...I don't know if his manager feels threatened or what, but she appears to be black mailing him and being a sensitive soul he's despondent that he's being put into this position. He knows that if he stands his ground he is likely to be sacked.

 

On top of this, he has to be in 15 mins before hand (not paid) and after closure often taking over an hour plus (not paid) because he has to leave with his colleague. The other day he didn't leave til past 8pm (started 8-45am) he had to be in because the boss of the stores was visiting, he had a 15min break, missed the last bus home, and walked 3 1/2 hours home on an unlit unpathed route in the freezing conditions. He couldn't get a taxi because he hadn't been paid yet. They new this yet they didn't get him a taxi.

 

He experienced this at the previous store he was at and found out that it was illegal, he raised it there and they changed his shifts so he wouldn't be on late, in fact they even removed one of his shifts and now he's going through the same thing with this firm. He's paid min wage works well over 8 hours per day and of course he's feeling rather like he's being blackmailed if you don't do this we will fire you, which is terribly demotivating and my worry is that he is going to end up being sacked or constantly under this cloud which will make him lose his enthusiasm for his job.

 

I have told him not to react but to take down all that she says, time and date, I am concerned that he hasn't shown me a contract and furious inside that these companies are getting away with unrealistic expectations of their staff. Didn't used to be like that. He needs this job but blackmail he doesn't, he's not a slave but it's almost feels like that's how things are these days. I am self employed for many years, it used to be just part-time and full time, but with these strange contract hours, I haven't experienced personally the change which this country seems to have adopted.

 

So can anyone advise me on how he should approach this matter? Appreciate any knowledge or advice on employment law in regards to stores.

[SarEl]

Whilst it is certainly true that some of this is unlawful, other parts certainly are not, and the bottom line overall is, as you point out - he has less that 52 weeks employment and can pretty much be dismissed for any reason the employer sees fit and will have no claim to unfair dismissal - so realistically any complaints made may do worse than fall on deaf ears.

 

There is no entitlement to a paid lunch break in law. If he was only getting 15 minutes, but it was paid, whilst the 15 minutes was unlawful, what he has just done was trade five minutes extra time for the 15 minutes pay! So he has no cause for complaint about not being paid because he was never entitled to pay for his lunch break.

 

It may not be "good management", but it is increasingly common management - employers can very much dictate as they wish, because there are plenty more fish in the sea. They are saying that he has shown himself to be "inflexible" - and they are going to be exactly the same. Nasty perhaps, but entirely lawful. If he puts a foot wrong he will be out of the door (and as I said, no unfair dismissal protection until 52 weeks) and they can do this, yes. Employers do not have to be reasonable about things - they just have to operate within the law and being reasonable isn't a legal requirement.

 

I am not sure where you get the idea that it is illegal for him to work late shifts - he is 23 years old and a working adult. People work night shifts in some employments, never mind lates, and it is perfectly legal. Unpaid overtime is also legal PROVIDED that the additional hours do not take the overall wage below the National Minimum Wage. Whether overtime is paid or not is a contyractual matter within this proviso re: the NMW

 

As for the contract - he does have one. It does not have to be written down. It ought to be as good practice, but it doesn't need to be. What has to be written down is the statement of main particulars of employment (what most people think of as the contract but actually isn't in law "the contract") - it has to be provided by two months into employment and he has only been there a month, so the employer is not doing anything wrong yet, and even if they don't provide it, it isn't actionable in law except as part of another claim such as unfair dismissal (which he can't claim).

 

I think you can see where this is going. Unfair it all may be, but some employers really do not give a fig about fairness because they have a lot of leeway within the law, and there are hundreds of people standing behind your son waiting for his job who will be happy to do whatever they must. That doesn't make it right, it doesn't make it fair - but since it is not unlawful, it is a case of two choices: like it or lump it.

 

I'd have to be honest and say that in some 30+ years of working in employment law, I cannot see any significant changes in these sorts of attitudes. They have always been there, and retail has always been a big "offender" in this regard. If anything has changed, it is that this kind of attitude is now seeping into some areas of work where it was not really prevalent before - but I think you must have been very lucky or "in the right place" if you have never come across it before.

[leilani]

Thank You Sarel for your very candid and down to Earth reply.

 

I just want to clarify one or two things that you have miss understood.

 

I am not sure where you get the idea that it is illegal for him to work late shifts - he is 23 years old and a working adult. People work night shifts in some employments, never mind lates, and it is perfectly legal. Unpaid overtime is also legal PROVIDED that the additional hours do not take the overall wage below the National Minimum Wage. Whether overtime is paid or not is a contyractual matter within this proviso re: the NMW

 

I can see you have mixed the two situations together, I certainly wasn't suggesting working late shifts was illegal, and my son has not been inflexible in anyway, quite the contrary. I can't see how just saying "well actually by law it should be at least 20 mins" is deemed inflexible, it's just stating a fact in conversation.

 

I was also just giving background info of what he's experiencing, an example: this particular day in the new job where the additional overtime hours over and above the normal overtime working hours which he doesn't get paid for were sprung on him, that day without consideration. Yeah sure they don't care because they are a big company and they don't have to treat their staff in a decent manner this is totally obvious.

 

As regards to his previous employers according to the government dept he spoke with it is illegal to work more than your hours and not be paid for it. When I was working for a full time employer we would get time off in lieu, don't think that can apply to these minimum contracts because they get paid by the hour. So in affect that would suggest that he was working more hours and getting less than the minimum wage. Was I lucky? No I just believed it to be the norm I have worked for schools, universities, colleges, restaurants, banks, publishers, councils, hotels, factories, never worked in a shop as an employee, just an owner and not one of those jobs had a policy of less than 10-15 mins in morning break, an hour lunch (non paid) and 10 mins in afternoon break.

 

I appreciate your advice and I have passed on to my son what you have told me, he clarified that he gets 1/2 hour break split into two on days he works more than 8 hours, and days he works more than 6 hours he is allowed a break of 15 mins. The confusion for him, this is his lunch break which notoriously isn't paid so he assumed he wasn't being paid for it anyway and quite rightly stated to his boss, who didn't know the law that over 6 hours he is entitled to at least 20 mins break, of course if he is being paid for it he will take 15 mins rather than 20 mins, but it wasn't made very clear to him, being that he has no role particulars outlined as yet.

 

Not that it matters because he has already decided to move on, as he has realised that his boss has made it personal by saying in the monthly review that he had insulted her (which was not intentional - he just pointed out the law) and that she would make it very difficult for him from now on. The truth of the matter that has been revealed to me subsequently, is my son was hired on the basis of new blood, and that his colleagues who have been working there longer are set to be phased out, she's just waiting for them to make a mistake. She actually told him this and now that she has realised that he's not wanting to be part of her plan to get new blood or be the new blood she's making it difficult for him...

 

This kind of dog eat dog world you are referring to does not exist from my experience and certainly doesn't breed loyalty, only contempt and already he's applying for a new job, as you say there are thousands of people who would fill his shoes,and certainly by your accounts, I now see there are no rights for people who work for these types of companies, doesn't look as if it will ever change with the kind of like it or lump it attitude you expressed is present in this society.

 

From a potential employers point of view (i don't hire, but if I did) I can see it makes business sense to have staff more on the mark sales wise, however they don't want to invest in training existing staff or looking after them for that matter, and rather have a higher turn over of employees which they can abuse to increase their profits, those that haven't got the training get terminated at the slightest whim legitimate or not, and there's nothing they can do about, because it is made easier by this law that you can't go to a tribunal for grievances against the company until you have worked 52 weeks. Personally I think it's crazy...we are not in the 1800's yet one would get that impression.

 

Thanks for your help I am sure he will find a more suitable environment that he will be appreciated for his efforts, eventually.

[SarEl]

Thank You Sarel for your very candid and down to Earth reply.

 

I just want to clarify one or two things that you have miss understood.

 

 

 

I can see you have mixed the two situations together, I certainly wasn't suggesting working late shifts was illegal, and my son has not been inflexible in anyway, quite the contrary. I can't see how just saying "well actually by law it should be at least 20 mins" is deemed inflexible, it's just stating a fact in conversation. I was not mixing up the situations at all. It is very simple. The law says that if you work six hours or more you are entitled to a 20 minute break unpaid. Your son raised this matter and the employer (who should have known this, I agree - but that isn't relevant) came back with "you can have 20 minutes instead of 15 - but you won't be paid". Fair enough - he is now getting his legal entitlement which is what he asked for. I am entirely sympathetic - but what is the actual complaint here. He complained he wasn't getting his legal entitlement and they gave it him. The fact that he is no longer paid for the 15 minutes is also lawful. With the greatest respect, whilst employers should abide by the law, he has got what he wished for and they are. Be cautious of chinese proverbs!

 

I was also just giving background info of what he's experiencing, an example: this particular day in the new job where the additional overtime hours over and above the normal overtime working hours which he doesn't get paid for were sprung on him, that day without consideration. Yeah sure they don't care because they are a big company and they don't have to treat their staff in a decent manner this is totally obvious. I agree entirely - but the operative matter here is that no, they do not need to care, and unpaid overtime is commplace in many industries. I am not saying that I agree with that - I am saying that it the reality.

 

As regards to his previous employers according to the government dept he spoke with it is illegal to work more than your hours and not be paid for it. The only government department that gives such completely crappy advice is ACAS. Please do let me know if I have missed one. Unpaid overtime, as I have just told you, is not unlawful in itself and it is commonplace. The only circumstances in which it is unlawful is where, when totalling the number of hours worked and the payment made, this reduces the hourly rate to below national minimum wage. That is not advice, from the government or anyone else - that is a statement of law. When I was working for a full time employer we would get time off in lieu, don't think that can apply to these minimum contracts because they get paid by the hour. Time off in lieu is any employers perogative - but so is the right not to give it. So in affect that would suggest that he was working more hours and getting less than the minimum wage. If you got time off in lieu then you were not working for less than the NMW - your extra hours were compensated by time off in lieu. Was I lucky? No I just believed it to be the norm I have worked for schools, universities, colleges, restaurants, banks, publishers, councils, hotels, factories, never worked in a shop as an employee, just an owner and not one of those jobs had a policy of less than 10-15 mins in morning break, an hour lunch (non paid) and 10 mins in afternoon break. Policy, not law. And, with the greatest of respect, given the long list of former employments you have had - quite possibly before the current legislation was in place, which sets out very specific rules on breaks, hours of work and NMW. There is nothing like telling an employer that you only have to give XXX, and many will immediately give exactly that and no more. By the way, the standard rule in councils is now that whilst you may take more lunchtime (unpaid) from within felxible working hours, you may only take in law, and must take, 20 minutes. As I said - employers evolve with the law, but not often much better than it.

 

I appreciate your advice and I have passed on to my son what you have told me, he clarified that he gets 1/2 hour break split into two on days he works more than 8 hours, and days he works more than 6 hours he is allowed a break of 15 mins. The confusion for him, this is his lunch break which notoriously isn't paid so he assumed he wasn't being paid for it anyway and quite rightly stated to his boss, who didn't know the law that over 6 hours he is entitled to at least 20 mins break, of course if he is being paid for it he will take 15 mins rather than 20 mins, but it wasn't made very clear to him, being that he has no role particulars outlined as yet. I appreciate this - but having now raised it, it is "out there" and 15 minutes is unlawful regardless of whether he is paid or not, and whether he agress to it being 15 minutes for a piad break. At the time of the query he was not, in law, entitled to have his written terms and conditions yet anyway (2 months - and that has reduced from what it used to be), and it might have been more prudent to have asked about the break before quoting his legal rights at his manager a month into the job. And certainly before you do that it is a great idea to know your legal rights around what you can do if the employer tells you to go to **** and take your cards on the way out. Like, at one month, not having any. Please do not misunderstand me here. I am greately sympathetic about the situation - but there is more than one way to skin a cat, and if one has no employment rights in a new job, then carefully is always advised.

 

Not that it matters because he has already decided to move on, as he has realised that his boss has made it personal by saying in the monthly review that he had insulted her (which was not intentional - he just pointed out the law) and that she would make it very difficult for him from now on. The truth of the matter that has been revealed to me subsequently, is my son was hired on the basis of new blood, and that his colleagues who have been working there longer are set to be phased out, she's just waiting for them to make a mistake. She actually told him this and now that she has realised that he's not wanting to be part of her plan to get new blood or be the new blood she's making it difficult for him... I think that is probably extremely wise - although from the employers perspective, rather sad, because he does appear to be the kind of new blood they need, if not what they want.

 

This kind of dog eat dog world you are referring to does not exist from my experience and certainly doesn't breed loyalty, only contempt and already he's applying for a new job, as you say there are thousands of people who would fill his shoes,and certainly by your accounts, I now see there are no rights for people who work for these types of companies, doesn't look as if it will ever change with the kind of like it or lump it attitude you expressed is present in this society. I would like to say that I am prejudiced because of the work I do, but I am afraid that is very much the case, and a few months on some of these boards will tell you that. I am very much aware that there are some excellent employers out there, but they are becoming more rare. For many employers, provided they are not overly burdened by employees demanding "their rights", then they tend to rub along and nobody on either side is any the wiser that they aren't reasonable employers. Generally until it comes to the crunch. But employers are always on one side - their own - no matter how good they are. The current economy just makes that more apparent - as it was in the 80's.

 

From a potential employers point of view (i don't hire, but if I did) I can see it makes business sense to have staff more on the mark sales wise, however they don't want to invest in training existing staff or looking after them for that matter, and rather have a higher turn over of employees which they can abuse to increase their profits, those that haven't got the training get terminated at the slightest whim legitimate or not, and there's nothing they can do about, because it is made easier by this law that you can't go to a tribunal for grievances against the company until you have worked 52 weeks. Personally I think it's crazy...we are not in the 1800's yet one would get that impression. I sort of agree entirely with you. Except for the fact that I know what the laws were in the 1800's, and transportation or death were the penalties for labour organisation and demanding your rights (not that you had any - these people had to die for the rights we now have).

 

Thanks for your help I am sure he will find a more suitable environment that he will be appreciated for his efforts, eventually.

 

I genuinely hope that he does and soon. But may I make a suggestion? If he is going to take after his mother - and I suspect his mother is nobodies pushover - and go around standing up for his rights, that he join a union? In the first place, they are there to help you do that - and secondly if he is going to go around demanding workers rights, he may as well get the title and training and legal advantages it offers standing up for everyone's and not just his own!!! It may just be another career option for him - and a good career at that too - although I will make no promises as to whether they are all good employers!