contracted hours

[andyford2000]

Hi, this is in relationship to my daughter

 

 

she has the following wording in her contract "Your hours of work will be 26 hours per week. you hours of work are flexible, as required to meet the needs of the business. your hours will be varied and allocated on a weekly rota in advance"

 

 

my question is;

 

 

she is constantly being made to work above and beyond 26 hours, basically is her employer allowed to continually do this, some weeks she may work 36 hours.

 

 

many thanks in advance for any help

[sillygirl1]

If you can prove over a 13 week period she consistently works more than 26 hours then you need to contact the HR department and get them to amend the contract.

 

It also may trigger an adverse reaction from the company so be careful.

[andyford2000]

the problem is, she is mother of a 18month old, she doesn't really want to work beyond her contracted 26 hours, but keep giving her many more

[Sidewinder]

If you can prove over a 13 week period she consistently works more than 26 hours then you need to contact the HR department and get them to amend the contract.

 

It also may trigger an adverse reaction from the company so be careful.

 

Sadly SG this would only rely on the employer accepting the 'request' to change the contract - there is no automatic right, and in the current environment, most employers would be extremely reluctant to formalise a contract giving more hours than are contracted.

 

In essence, the OP's daughter has a contract giving a guaranteed 26 hours a week, but with regular overtime. Whether any regular time worked over and above the contracted hours can ever be considered a change in contract can only be for an Employment Tribunal to determine. There is no fixed period (let alone 13 weeks) after which an employee can force an issue of 'Custom & Practice' to get the core contract changed. An ET would look at many factors, such as mutuality of obligation, how the overtime is shown on the wageslip etc in coming to a decision. Are the hours rota'd or is there a 'request' for the employee to work overtime? Would there be any sanction were the employee to refuse extra hours? Is an enhanced rate of pay applicable, or are there any extra benefits given for any of the overtime worked?

 

Custom and Practice is very hard to prove - there is good recent case law coming through around the subject of holiday pay or commission being based on hours worked, but in terms of forcing a change to contract based on regular overtime, it is incredibly difficult

 

What is certainly true is that trying to get an employer to guarantee increased hours through a change in contract might well remind them that they need to look closely at the relationship and cut back on the regular overtime, so it is sometimes better to not be too demanding - and especially when the employee has less than the required two years service to issue a claim for Unfair Dismissal should the employer decide that an employee's face no longer fits

[Sidewinder]

the problem is, she is mother of a 18month old, she doesn't really want to work beyond her contracted 26 hours, but keep giving her many more

 

Then this comes back to the issue of 'mutuality'. What would be the situation if the extra hours were refused? What is the precise wording of the contract? Does it state that 'any' overtime requested 'must' be worked, or that 'reasonable' additional hours must be worked due to the changing needs of the business? In that case, what is 'reasonable'?

 

Has your daughter (based on exactly what is in the contract), tried refusing to work some or all of the hours above her contract?

[andyford2000]

she hasn't directly refused to work the extra hours but has made it clear that she isn't happy and doesn't really want to work above her 26 hours. I suggested I would seek advice here first before she does anything incorrectly. She is quite adamant that she on wants to work the contracted 26 hours.

 

 

this is the wording in her contract

 

 

"Your hours of work will be 26 hours per week. you hours of work are flexible, as required to meet the needs of the business. your hours will be varied and allocated on a weekly rota in advance"

[ericsbrother]

flexibel? so if she does 36 hours one week will they let her work only 16 the next rather than getting paid for the additional hours.