Hourly rate cut without any notice or consultation

[WBWarrior]

Hi,

 

I am employed as a sessional worker (casual worker) for about 2 years. I have recently been in a bit of a dispute with the employer with regards to holiday pay, the employer told me that sessional workers where not entititled to holiday pay, howver some time later I found out that sessional workers are entitled to holiday pay.

 

To cut a long story short, I complained about the holiday pay situation, they ignored it, I got a solicitor to send them a letter, they ignored it some more, then finally admitted that I was correct pretty much.

 

However, they have now come out with a sessional worker policy but they are now saying the hourly rate for sessional workers is 80p less than I was previuosly paid e.g I was always on £8.00 per hour now they have basiclaly cut it down to £7.20.

 

There was no notice and no consultation whatsoever about the hourly rate cut. As a sessional worker I do not have any written contract and neither did I sign or see any sessional worker policy when I started work.

 

What they have basiclaly done is take my hourly rate and take 12.07% off of it (thats the percentage to work out holiday entitlement for atypical workers) and then they have came up with the new, reduced hourly rate.

 

I am currently taking them to an ET anyway regarding the holiday pay debacle, but can they just cut my hourly rate as they see fit? surely that cant be allowed, without some kind of notice or consultation, they are just doing that to get out of paying holiday pay again.

 

Could I argue that it is unlawful deductions of wages, or perhaps discrimination on the grounds of my employments status? I am pretty worried as this reduced hourly rate will most likely put me into a difficult financial situation.

 

Any advice or thoughts would be appreciated.

[Sidewinder]

This is a perfect illustration of how standing up for your rights, tends (even though it shouldn't) to mark you out for special attention!

 

Your employer on the face of it has been paying you 'rolled up' holiday pay, ie an hourly rate which included an element of holiday pay so that should you take time off you have effectively already been paid for it. Those arrangements are generally unlawful, but do still exist - as seen in your case - unless the contract was very specific in explaining this and the arrangement was accepted by the employee.

 

As to whether they can now reduce your hourly rate? Strictly speaking no, as this would be a breach of contract unless you agree to the change, but in terms of what you can do about it - not very much! If they want to change the contract (and they have to following information received that they were acting potentially unlawfully so will not allow you to have your cake and eat it!) then they can just give you notice that they will terminate the contract and re-engage you on the new terms anyway. If you then accepted the new contract then you lose any length of service benefits, including the right to take ET action of Unfair Dismissal as and when they get rid of you (and my guess is that they would), or you walk away and try to claim Constructive Dismissal for the breach of contract, and the likely damages would be minimal. The change is necessary in order to comply with WTR rules on paid holiday, so I think you would have a battle in proving your case. After all you instigated action to change their policy on paid holiday, and they would argue that they have admitted they were wrong and have changed accordingly.

 

Crap situation I know, but I think you are going to have to bear it. Your financial position should be no worse, as you will now be taking paid holiday as opposed to unpaid. You can't argue that you don't want to take it as you have previously worked all year round so will now be earning less as you should have been taking the time off anyway - even unpaid (although it wasn't as you were getting the extra 80p an hour to allow you to save for time off).

 

I don't see discrimination as this will be the same policy for all workers in the same position as you surely? You would have to prove that other sessional workers are still getting £8 per hour AND getting paid holiday AND that there was a discriminatory factor (age, sex, religion, race etc) causing you to receive a lesser rate. Equally if a full timer in the same role was earning more AND getting paid holiday then you might argue that you are being disadvantaged due to being part time, but once again I don't see it on the basis of what you have told us.

[WBWarrior]

Hi sidewinder thanks for your reply,

 

I'll explain a bit more detail to see if it helps.

 

With regards to the rolled up holiday pay, I beleive this was not the case as I was specifically told "sessional staff do not get holiday pay" and I was payed, for example 8.00 per hour. On my payslip it simply said the hours worked and the hourly rate, there was no itemisation that stated there was holiday pay rolled up into the hourly rate.

 

About 2 weeks before I got the sessional policy I mentioned above, I was given another policy which claimed that holiday pay was included in the hourly rate, in this policy they claimed the hourly rate was for example 7.40 and including 10% or so the hourly rate payable was say 8.00. I told and showed proof that including holiday pay rolled up was unlawful and that is when they changed the policy to the new one with the hourly rate now even less. So in the space of two weeks my hourly rate has went down twice.

 

I do know for a fact that employees who have written contracts with the company do get 8.00 per hour AND holiday pay, so it is possible then that I could argue under the part time workers provention of less favourable treatment act?

 

At the ET I am actually looking to get all the holiday pay i would be owed back, even forlast year (i did not find out till this year that I was entitiled to holiday pay).

 

As a further argument, I would like to argue that the employer knowingly and willingly denied sessional workers there statutory right to holiday pay, not sure how I would prove that though, but giving there attitude to this situation its pretty obvious they deliberatley told sessional workers they wehre not entitled to holiday pay just to save some money.

 

Thanks for your help.

[Sidewinder]

OK - I take those points, but strongly believe that whatever the real situation, the employer might well argue (since there was nothing in writing) that they either genuinely believed that sessional employees were not entitled to holiday, or that rolled up holiday pay was lawful and that they have now corrected this in the light of your case. I have little doubt that they will claim that if the latter is the case, that all employees were told about the rolled up nature of holiday pay!

 

If you feel bold enough, and can glean enough information to believe that you have a good case, then complain that you believe the employers actions contravene the The Part-time Workers (Prevention of Less Favourable Treatment) Regulations and challenge the change in hourly rate on that basis when comparing your role to a direct equivalent full timer whose rate of pay has not been changed.

[WBWarrior]

Hi Sidewinder, thanks for replying again.

 

I think I have a strong ET case with regards to holiday pay, even if they argued that the holiday pay was rolled up it was not itemised so I beleieve a judge would side with me on that. Surely they cant claim that they simply didnt know? surely ignorance is no defence.

 

I'll talk to my solicitor and mention the part time workers regulations to him. I am also attempting to argue, at the ET, my employment status as I actually work regualr hours and days and I beleive there is sufficiant mutuality of obligation to class me as an employee and not just a worker.

 

Sometimes I wonder, as Im sure many do on this forum, why bother complaining and trying to stand up for your rights when employers can seemingly argue there way out of it using any lies. It really is frustrating.