New contract

[Gazrobbo]

Firsy of all hello everyone im Garry and new here.

 

I work for a private health care company and they have revised our contract down to 37 hours from 39 and chnged almost every part of it we had a 30 day consultation period and a few things have changed but there are a few things i would like some advise on all are under the heading hours of work.

 

here are the bits straight from the contract that i am concerned about:

 

1. There is a need for the employee to be flexible and these hours may be changed as required according to the employer's needs. under these circumstances , where hours need to be changed or additional hours worked, the employer will give as much reasonable notice as possible.

 

This concerns me as i understand it to mean they can change my working hours without further consulation and without me having to sign a new contract? this means they could force me to work a 48 hour week or indeed cut my hours to whatever suits them whenever it suits them?

 

2. under the working time regulations 1998 (wt regulations 1998), a workers working time (including overtime) must not exceed 48 hours per week on average, unless the worker has voulentarily signed an opt-out agreement, you hearby agree to opt-out of regulation 4(1) of the working time regulations 1998, although you may terminate such opt-out at any time by giving tghe group not less than three months written notice.

 

I feel this shouldn't be a contractual requirement?

 

3. you may also be required to work overtime where the needs of the establishment require it, for which you will also be allowed , at the option of the principal/head/manager, either time off in lieu on an hour for hour basis, or payment at the agreed rate of overtime. The overtime rate will only apply once the normal full time hours of work have been achieved.

 

I dont want to be forced to do overtime especially at our new flat rate of £9.05 an hour.

 

Any advise greatly recieved but i do need to know where i stand legally.

 

i have untill the 7th january to accept my new terms before they will dismiss and offer a new contract on the same terms but at a lower rate of pay.

[rebel11]

Hi Gaz

 

Welcome to CAG

 

The guys will advise as soon as they are available.

[honeybee13]

Hello there and welcome to the forum. The guys are around, but you need the right ones to turn up to have answers. Please bear with us while they get over the celebrations or have time off and I'm sure someone who knows will be along soon.

 

While you're waiting, have you looked at the ACAS or directgov websites? There's quite a lot of employment information and you could try the ACAS helpline for a chat once they're back next week.

 

My best, HB

Edited January 2, 2011 by honeybee13
Duplication.

[Sidewinder]

Hi Garry and welcome.

 

As far as I see it you are going to be left with little choice here. Whilst a contract is a contract, and you can hold out and refuse to accept, these are pretty standard contract terms, and the employer could indeed just terminate your existing one and then offer you employment on the new terms. That would leave you with any existing length of service broken and either accepting the situation or refusing the new contract and trying the Constructive Dismissal route, but based on what you have said here, it would be a miracle if that went anywhere as the employer does seem to be acting 'reasonably' - and particularly in the current economic circumstances, they would be having to impose far more draconian changes to your contract for a Tribunal to rule otherwise.

 

Looking at the changes one by one:-

 

1. There is a need for the employee to be flexible and these hours may be changed as required according to the employer's needs. under these circumstances , where hours need to be changed or additional hours worked, the employer will give as much reasonable notice as possible.

 

This concerns me as i understand it to mean they can change my working hours without further consulation and without me having to sign a new contract? this means they could force me to work a 48 hour week or indeed cut my hours to whatever suits them whenever it suits them?

[/Quote]

 

I think you need to clarify whether 'changes' to your hours of work might mean a reduction. This is a standard clause in employment contracts, and in practice I would take it to mean that where cover is required, there may be a need to vary working hours (as opposed to cutting them further) for short term needs in the interests of the business. The key word here is 'reasonable' - this is not defined in employment law, and varies from person to person. Two days notice may be reasonable for a single person with no outside commitments, living next door to the place of work, but may be entirely different for a single parent (or married, divorced, separated person with childcare responsibilities, or where the employee has to get the one available bus home to a dark village on a cold winter night).

 

Reasonable works both ways, so in those circumstances, it may be 'reasonable' to decline a request to work extra hours at short notice where this would not be possible in your particular case.

 

2. under the working time regulations 1998 (wt regulations 1998-), a workers working time (including overtime) must not exceed 48 hours per week on average, unless the worker has voulentarily signed an opt-out agreement, you hearby agree to opt-out of regulation 4(1) of the working time regulations 1998, although you may terminate such opt-out at any time by giving tghe group not less than three months written notice.

 

I feel this shouldn't be a contractual requirement?

[/Quote]

 

It can be a contractual issue (and indeed it should be if the job is likely to involve working regularly for more than 48 hours a week), but not a requirement. You cannot be forced to opt out, nor can you be punished or suffer any detriment if you refuse to opt out. Once again, I would imagine that the employer wants to ensure that should the need arise, they will have staff available to cover a particular circumstance where they might have problems if everybody available had already worked their maximum 48 hours in that week. I doubt very much that this would be for anything other than an exceptional situation, so perhaps you should also ask the question 'why'?

 

You could of course sign, then immediately opt out again without fear of recriminations?

 

3. you may also be required to work overtime where the needs of the establishment require it, for which you will also be allowed , at the option of the principal/head/manager, either time off in lieu on an hour for hour basis, or payment at the agreed rate of overtime. The overtime rate will only apply once the normal full time hours of work have been achieved.

 

I dont want to be forced to do overtime especially at our new flat rate of £9.05 an hour.

[/Quote]

 

I don't think I have ever had a job where this wasn't a clause in my contract. As an employee (and more so as a Manager) it was always understood that I worked for the employer, in the interests of the business. In practice, it was only ever for a few minutes, or a couple of hours at most, and it was very much swings and roundabouts, but as with the points above, where would the employer be if they were short staffed, and nobody could work as they all wanted to get off and go home? By having a contractual clause which required staff to be available on an overtime basis if the need arose, then at least they would be covered!

 

The best thing that you can do is to write down your concerns and address them to the employer. Just say that you have a few concerns regarding the changes, and why certain parts might cause problems to you personally. What employers look for is flexibility, and in order to gain that in a workforce, it is sometimes important for staff to understand why and when this may be required, but insofar as the contract changes themselves are concerned, whilst you do have a right to refuse, the employer also has a right to change terms, and unless these are completely 'unreasonable', there is little that you can do, except to negotiate on the sticking points.

[Roblynmouth]

Hi

The WTA is contractual only in itself, it hard to understand why your employer has added this to their contract. As it is enforceable on both you and the Employer without any recourse to a contractual term.

You can't be made to sign anything that would enable you to work more than 48 hours unless you want to, as such a decision would not be enforceable [in the case of requiring you to work more than 48 hours] in law. Moreover if they did that would be grounds for walking away from your job

However that aside i think Sidewinders advise is good here. Think about yourself and your future? £9.05 not a good overtime rate? i know workers who work a lot more than 48 hrs a week and only get minimum wage for what ever hour they work.

Upsetting your employer with a cack handled refusal to do anything is always not the best way to make friends and influence people.

Have a chat [as above] with said employer and try to get to the bottom of why they are doing what they are doing. Moreover if you have issues that would preclude them springing overtime on you at the last minute they you can have the chance to let them know in advance?

[djgordyp]

Hi

Think about yourself and your future? £9.05 not a good overtime rate?

 

Have to agree there. Try overtime at £7.44 P/H