Zero-hours contract

[Jemms]

Why have I joined this forum? Well, I'm one of the 1million on a zero-hours contract and have been since December 2001. I thought we were alone but have found out otherwise over the past few days. We have not had any pay rise for 5 years and are now on the basic hourly rate which makes life very difficult. Last month I worked 68.5 hours but this month only 41.5 and next month 32.5. I have found the original 'Job Description' from 2001 in which it states that the minimum hours of the job would be 22 per week. The employer is the local council so, of course, finances are low () and, although we have had 3 different managers over the past 7 years, we just get forgotten and treated as though we don't exist with no rights and no say at all, particularly by our current Manager, who would really like to dispose of the telephone sales and rely on the Internet.

 

Sorry to bore you all but I could go on for hours. I just wondered if anyone out there is in the same boat.

[BankFodder]

I'm amazed that even the local council is doing this. I don't think that this is widely known.

 

If you have a contract which promises you 22hrs per week then I think that you can enforce it and even backclaim money which they haven't paid you.

[renegadeimp]

From what the news is saying, it is actually very common in the london borough councils too.

 

As BF said, if your contract says 22 hours and you never signed or recieved any other contracts, then they must give you the 22 hours a week.

[BRIGADIER2JCS]

Certainly if you had a contract for 22hours, and were not properly informed of a change to zero hours you may well have a case.

[Jemms]

It's not so much an actual contract as a 'Job Description'. The manager we had at that time always looked after us and our Line Manager made sure we had jobs to do through the quiet months of July and August as she appreciated that we still had the same out-goings but our current Manager only thinks of No. 1. I find it so demoralising and depressing. We've never been 'allowed' to join the Union but a meeting was arranged with a Union person some years ago. I was the only one of us who turned up - everyone else chickened out and, guess what, the Union representative didn't show either!

[BankFodder]

Job description is sufficiently formal for enforcing 22hours

[rebel11]

Even with a 'Zero Contract' I would think that the employment contract comprises implied terms (unwritten terms), a key implied term is the 'duty of mutual trust and confidence' which requires employer and employee to act honestly and respectfully towards each other.

[alisindebt]

Why have I joined this forum? Well, I'm one of the 1 million on a zero-hours contract and have been since December 2001.

 

Sorry to bore you all but I could go on for hours. I just wondered if anyone out there is in the same boat.

 

According to your figures, which span a three month period, you have worked and will be working, a total of 142.5 hours. However, you terms and conditions state clearly that you were being offered 22 hours per week. A month is about 4.3 weeks, so your number of hours per month should be 94.6, which over the quarter would be 283.8.

 

This means, assuming that your terms and conditions are up holdable, which is what BF is suggesting, you should be paid for the balance, which is 141.3 hours. The minimum wage is 6.31 pounds currently, so you would be due 891.60 pounds in additional payments for this quarter, equivalent to 297.20 pounds per month.

 

Going back to 2001, when you first got the contract, minimum wages are as follows:

 

The National Minimum Wage rate per hour depends on your age and whether you’re an apprentice - you must be at least school leaving age to get it.

Year 21 and over 18 to 20 Under 18 Apprentice*

2013 (from 1 October) £6.31 £5.03 £3.72 £2.68

2012 (current rate) £6.19 £4.98 £3.68 £2.65

2011 £6.08 £4.98 £3.68 £2.60

2010 £5.93 £4.92 £3.64 £2.50

 

 

From December 2001 to this month, there have been 128 months. Using figures for the present quarter, assuming your work hours were equal during the whole employment period, you would be due 128 x 297.20, which is 38,042 pounds.

 

I have used the current national minimum wage for the whole calculation, obviously it was lower earlier during your employment. I have also used only this quarter's working hours.

 

To get an exact figure you would need to calculate the exact working hours for the whole period from December 2001 and take into account the minimum wage changes during that period.

 

Assuming that they have to honour their original terms and conditions, again, which BF suggests, you could be sitting on a small fortune.

 

Well worth getting out your paperwork and getting a glass of beer, relax and work out the exact figure.

 

Then report back here and we will tell you how to make a claim.

 

Mine's a Pedigree bitter please. Don't forget to make a donation on here. Christmas may come early this year. All the best. Cheers! Take a look at my threads on here to see how simple claiming can be when you have right support. You are amongst friends here.

[farmlama]

i would say this is quite a shady area regarding contract terms.

 

on the one hand an employment contract is made up of several things and can include verbal or implied terms as well as written. what most people call their 'contract' is actually a written statement od particulars, your actual contract on the whole will include things such as an employee handbook, therefore the job description would form part of your contract.

on the other hand as i mentioned impled terms, it wan also be implied that if a change to contract is undisputed and work carried on for a long period of time then it is implied that this has been accepted as a change of contract by the employee and the new implied term will stand in place of the old term. so it can be argued that as this has gone on since 2001, that in 12 years it has been implied that you are no longer on a 22hr p/w contract, and you have accepted that your shifts will vary month by month.

[alisindebt]

Good point, but we need a legal expert to give best advice on this. Is anyone out there qualified enough to know what the situation with this is? BF stated above that, @Job description is sufficiently formal for enforcing 22hours', but you have suggested a doubt over this.

Edited August 6, 2013 by honeybee13
Font size fixed, I hope.

[alisindebt]

Sorry about the big font size, it was a mistake, but the message is correct.

[Jemms]

To get an exact figure you would need to calculate the exact working hours for the whole period from December 2001 and take into account the minimum wage changes during that period.

Unfortunately, oh shredded my Timesheets in one of our moves so I only have the ones from 2009.

[farmlama]

Good point, but we need a legal expert to give best advice on this. Is anyone out there qualified enough to know what the situation with this is? BF stated above that, @Job description is sufficiently formal for enforcing 22hours', but you have suggested a doubt over this.

 

im not an expert, but I do think the situation on this would depend on having more information about the case. also if it was to go to ET it would depend on the employers defence and also the opinion of the tribunal people.

 

the 22hr job description would have been 100% enforceable if challenged from the start of employment, or in a case where for years he has been working over 22hrs pw and it is only recently that it has dropped lower and so challenging the recent change.

 

but I would say that if for the past 12 years the hours have always been over the place and regularly below 22 then it would be seen as accepted

Edited August 6, 2013 by honeybee13

[alisindebt]

Good reply. So it seems possible that having accepted this for the last 12 years, it implies that the terms and conditions were accepted. That seems to be the drift.

 

However, 3 years ago I successfully got a refund from Scabby Abbey (Abbey National) for ppi mis selling dating back prior to 2000. I was told that I could not claim as I was outside the FDA dates, but I claimed anyway. There's found in my favour and I got a full refund plus a percentage as per County Court percentages, plus compensation.

 

So are we 100% sure that our friend accepted his short working hours compared to what was posted on the teems and conditions? Or, could it be like me, albeit with a different kind of claim, namely ppi, that our friend could have a claim backdated and fully refunded with interest and with compensation? Take a look at my Abbey National thread to see where I'm coming from... .

[alisindebt]

Apologies again for typos, but I am in a mobile device, but I guess you know what I meant.

[honeybee13]

I think I've fixed the font size.

 

HB

[steampowered]

I agree entirely with BankFodder. A job description is formal enough to form part of your employment contract and provide a solid basis for bringing a claim.

 

It is possible to agree to a change in your employment contract verbally or through conduct. However, generally speaking, the courts would want very clear evidence of a new agreement being reached before it is prepared to depart from a clear, unambiguous, written document. Most of the time when "agreement by conduct" is established it involves circumstances where there is no clear written document covering the particular situation.

 

If you have accepted working less than 22 hours without any complaint many times over the years - especially if this is backed up by changes to the employee handbook or the council's other policies - then the council could reasonably say that you accepted a change in your employment contract. Otherwise, I think you would have a case strong enough to take to county court (not Employment Tribunal since the ET generally limits claims for deductions to the last three months) and we would be happy to help you with this.

 

This is a live political issue and the government will shortly decide whether to hold a formal consultation on zero hours contracts. In my view they are outrageous and need to be banned, subject to very limited exceptions. I hope that you will write to your MP letting him know about your experiences and encouragnig him to push for a formal consultation. I also hope that you will keep your eyes out for the consultation and will submit details of your experience to that consultation. Contrary to popular belief submissions like this can and do influence the outcome of consultations, and the results of consultations do influence government policy.

[alisindebt]

Tnx

[alisindebt]

Hi steam powered, great information, that's what I was asking for. Next step, if or friend is unsure of hours worked, how would a county court claim be started; I mean, it must be difficult to claim if there is no records of hours worked. Or does the Council have to keep records? If so, how can our friend obtain that information to instigate a claim?

Edited August 6, 2013 by alisindebt
Typing error

[Hacked_Off]

I'd be starting this off with a subject access request specifically asking for copies of timesheets/payslips or anything that will confirm hours worked.

[alisindebt]

How long back do they legally have to keep records? This goes back to 2001.

[steampowered]

It should be possible to get idea by examining his bank statements, if he has them.

 

I'm not sure if the council is required to keep records. Even if this is not technically required I imagine it keeps records as a matter of good practice. If it is not willing to provide these records voluntarily they should be disclosable during any litigation.

 

Claims for unpaid wages dating back more than six years are likely to be statute barred under the Limitation Act 1980 ... so probably not a great deal of point going further back than 2007.

[Jemms]

I did make a complaint on the 20th March 2010 about my hours dropping dramatically to 40.5. Up until then, they'd been reasonable but, when I got my rota for April 2010, I wrote an e-mail (of which I have a hard copy) to my Team Leader with copy to the Manager, stating my concern about the decrease and saying that I sincerely hoped it was not a sign of things to come. Oh dear, how wrong was I?

[alisindebt]

So after the SAR, would you send a notice before action, to try and get them to pay up, or would you suggest going straight for a county court claim? I realise wages prior to 6 years ago are statute barred, but many debt collection agencies am for them to be paid. So it friend could always do the same trick and ask for refunds all the way back. Of course, if a notice before action is sent, a quick mention of writing to the local MP, etc. may twist their arm.

[steampowered]

I think you should always start by raising a grievance in accordance with the council's grievance policy. If that doesn't work the next stage is a letter before action. The CPR does require a letter before action, although in practice in small claims track the sanctions for not following proper pre-action procedures are toothless.

 

If you are very concerned about limitation, the more aggressive course of action would be to require the council to enter into what is known as a "standstill agreement" to stop the limitation period from running while your grievance is heard, or alternatively to issue a claim form and then agree with the council that the case will be put on hold for a period of time. However these are both aggressive strategies and in my opinion probably not justified in the circumstances.

 

Of course, you will have to judge whether it is worth it. A minimum of 22 hours might not help you that much if you are concerned about a drop to 40. While your manager should not put you at any disadvantage for enforcing your rights, legal theory does not always match reality.