The problem of contracted hours not being met is affecting employees across the economy as employers are forced to respond to the impact of the coronavirus outbreak.
The following guide provides an overview of the law relating to contracted hours, and what you can do if your employer has failed to pay you for all of the hours that you are contracted to work.
The law on contracted hours
Typically, your working hours will be set out expressly in your contract of employment. Your contract will usually also state how these hours are to be worked, for example, in shifts or on fixed days.
(If you have no written contract of employment see our article ‘I have no employment contract (What are my rights?))
Unless you have agreed to work fewer hours, for example, by agreeing a shift swap with a colleague, your employer is obliged to give you at least this number of working hours, or to pay you in lieu where your contracted hours are not met.
As such, you should be satisfied at the time of agreeing to your contracted working hours that you are happy with the minimum hours set under the terms of the contract. Employers of zero hour contract workers for example are currently under no legal obligation to guarantee any hours.
However, where there is not enough work for you and your contracted hours cannot be offered, your employer can ask you to take unpaid leave or to stay at home.
Contracted hours not being met: lay-offs and short-time working
A lay-off is where your employer is temporarily unable to provide you with work for at least one or more working days.
Short-time working is where you are laid off for a number of contractual days each week, or for a number of hours during a working day. In other words, your contracted hours are ‘cut back’.
You are entitled to be paid in full for any period during which your contracted working hours have been reduced, by way of lay-off or short-time working, so long as your contract does not allow for reduced or unpaid layoffs, and that you make yourself available for work but have been unable to undertake those hours through no fault of your own.
There is no time limit on how long you can be put on short-time or laid off for. You may be able to apply for redundancy if you have been off for four weeks in a row, or six weeks in any 13-week period.
Contracted hours not being met: where your contract allows
You can be laid off or put on short-time working without pay where there is a specific term in your contract allowing your employer to do so or, alternatively, you agree to the reduction in hours. In these circumstances, your employer is not required to make up any deficit in your wages.
There may be an agreement covering contracted hours not being met between the organisation that you work for and the trade union, although for such an agreement to have contractual force, it must be incorporated into your contract of employment.
If your employment contract does not expressly provide for lay-offs or short-time working, you and your employer may individually agree to alter the terms of the contract so that any reduction in hours is by mutual agreement.
Where an employer is looking to change, reduce or cancel any of your working hours, they are required to give you reasonable notice. Reasonable notice is not defined by law, but 12 hours can be used as a general rule. Without reasonable notice, such as a same-day request, you can refuse the change.
The right of an employer to lay you off may also be implied if it can be shown, by clear evidence, that it has been established over an extended period by custom and practice.
Contracted hours not being met: where your contract doesn’t allow
Unless your employment contract expressly allows unpaid or reduced pay lay-offs or short-time working, or you agree to any reduction, your employer is not legally permitted to cut your pay.
Whilst your employer may ask you to change your contracted hours, they cannot force you to do so. Accordingly, contracted hours not being met would be classed as a breach of your contract.
You should discuss this matter with your employer informally in the first instance. The problem may have arisen from a simple mistake and, as such, can be resolved by a change in the rota. If you are not satisfied with the response, the next step would be to follow your organisation’s relevant complaints, or grievance, procedure.
You would need to attempt ACAS early conciliation prior to making a claim to the employment tribunal within 3 months less one day of the breach to recover your unpaid wages. However, claims for breach of contract cannot be made in an employment tribunal unless your employment has ended.
(For advice on making a claim against your employer in an employment tribunal read our article: Employment Tribunal (Claiming Against Your Employer))
In some circumstances, where you have been laid off or put on short-time working, this may amount to a dismissal entitling you to apply for redundancy and claim redundancy pay.
However, you would need to show that you had been without work for 4 consecutive weeks or, alternatively, a total of 6 weeks in any 13-week period, and you have earned less than half your normal pay. You would also need to have worked for your employer for at least 2 years.
You could also argue that by your contracted hours not being met, this amounts to a constructive dismissal, causing you to resign, for which you can lodge a claim in the employment tribunal.
Contracted hours not being met: claiming guarantee payments
If you are laid off or put on short-time working without pay, you may be entitled to claim a statutory guarantee payment. The right to this payment arises where an employee is not provided with work throughout a day or shift on which they are normally required to work.
To be eligible, you need to have worked for your employer continuously for at least one month. If you unreasonably refuse alternative work, or are not available when a reasonable request has been made for you to remain on standby, you will lose your entitlement to a statutory guarantee payment. You must also not have been laid off because of industrial action.
You can only get statutory guarantee pay for 5 days in any 3-month period, paid out at a rate of £29 per day. This equates to a maximum of £145.
If you earn less than £29 a day, you will be entitled to your normal daily rate. Your statutory entitlement will be worked out proportionally if you work part-time. Further, you cannot claim guarantee pay for any day that you actually undertake any work.
Your employer may have a guarantee pay scheme, however, this cannot be less than your statutory entitlement. Further, any failure by your employer to make a guarantee payment will be classed as an unlawful deduction of wages for which you can make a claim to the employment tribunal under Part II of the Employment Rights Act 1996.
On any days for which a guarantee payment isn’t payable, it may be possible to claim benefits. This could include Jobseekers Allowance, Income Support or Working Tax Credits. You may also be able to use any holiday pay available to you, and you may even be entitled to a tax rebate following any drop in income.
Contracted hours not being met: undertaking alternative work
If you are laid off or put on short-time working, you should always check your contract of employment to see if you are permitted to undertake other work, such as taking on another job with another employer while you are working reduced hours, unless your contract expressly prohibits this.
You would also need to ensure that you would be immediately available to return to work for your original employer. If you are unable to make yourself available for work, your employer could construe this as a resignation and refuse to pay you any redundancy to which you may otherwise be entitled.
If you have been laid off or put on short-time working you should always:
- get your employer’s agreement to undertake other work in the interim
- not work for a competitor of your employer
- ensure you are immediately available to work for your original employer at short notice.
Seeking legal advice
The issues relating to contracted hours not being met can be complex.
Taking legal advice can help you understand your rights under your contract and under statute, and what options you may have to enforce your rights.
In the event that you are unable to recover any unpaid wages from your employer, either informally or through any grievance procedure, your adviser can also help you consider whether you have cause to bring a claim to the employment tribunal.
Author
Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.
Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing Agency for the Professional Services Sector.
