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What Can An Employee Do When Contracted Hours Are Not Being Met?

contracted hours not being met

A contract of employment is the key to any employer/employee dynamic. It set’s the boundaries for both parties and lets each other know what to expect during the employment period. This includes contracted hours (actual working hours) and compensation for extra hours (overtime) should the business require it.

The key here, is that contracted hours are the minimum paid hours you should expect each week/month. But what happens when contracted hours not being met becomes a problem in your work life? If an employee was failing to show up for their contracted hours as stated in their employment contract, then there would be an issue. So if the business isn’t holding up their end of the bargain, what’s next?

Below we’ll look at where you stand when the actual hours worked during the week/month is less than your contracted hours. We’ll look at both being laid off and short time working, and whether or not you’re still entitled to your full contracted hours pay, even when your actual working hours falls below this.

What is the law on contracted hours?

Your contracted hours will be set out in your employment contract with details such as:

  • number of hours to be worked each week/month
  • number of days to be worked over
  • shift patterns if applicable

 

Part of the reason any employee will accept or reject a job offer will be based on the employee’s salary and the minimum number of hours agreed in the contract. Nobody would sign a contract that offered long hours, 12 hour shifts 5 days a week, no sick pay for £20 a week (ignoring the fact that that’s illegal, of course). The point is, an employee will only sign a contract they’re satisfied with, which is why everybody should be diligent in reviewing the number of hours promised in the confines of your employment contract.

employee signing contracted hours

 

It’s really important to remember that hours are only guaranteed as working hours when explicitly stated in the contract of employment. A zero hour contract, for example, means that no hours are guaranteed in a week or month, and there’s no legal obligation there on behalf of the employer or the employee.

However, when those working hours are set out clearly in the contract, an employer is legally required to provide those hours to the employee – they cannot force their employee to work fewer hours than promised in the contract given to the employee. Failing that, they must pay the employee the contracted hours, even when the actual working hours worked is less than that amount. The only exception? If the employee themselves agrees to working fewer hours and the contracted hours not being met is due to the employee, not the employer.

There are some options open to employers who can’t offer the minimum contracted hours to their employees for whatever reason. Perhaps business needs have changed or the business isn’t making as much money as it once was.

Whatever the cause of the shortcomings in hours being offered to employees, an employer can choose one of the following options rather than continuing to give employees full pay for less hours worked (provided the following options are included in the employment contract):

Lay off vs short time working

When an employer is unable to offer contracted hours to employees, it is possible to ask the employee to take unpaid leave either via a lay off or short time working.

But what’s the difference between a lay off and short time working, and can people be forced to take these options?

Lay offA lay off involves an employer asking an employee to remain at home as a result of not being able to provide enough work. This will be a period of at least one working day but can last for several weeks.

If the employee’s contract states that lay off periods are a possibility, the employer is not legally obliged to pay the employee for this time. However, if the contract of employment does not mention lay offs, it could amount to a breach of contract, leaving the business open to a tribunal claim for unpaid wages.

Short time workingShort time working is when an employee’s contracted hours are reduced temporarily. This could mean working a fewer number of hours each day or fewer days per week over a short period.

Again, if the employee’s contract allows for short time working, this could be unpaid. However, if the contract does not mention short time working, reducing the number of contracted hours that are offered to the employee would amount to a breach of contract.

Payment during lay off

An employee must be paid for their contracted hours during a period of being laid off or during short time working, so long as they are available for work (e.g. they haven’t taken up new, short term employment). However, if the contract states that employees won’t be paid for periods of lay off or short time working, OR if the employee agrees to reduced hours to help out the business, then the employee won’t receive compensation during this time.

If an employer refuses to pay an employee for their contracted hours without a clause in the employment contract that permits unpaid lay off or reduced pay during short time working, they risk a claim at the employment tribunal.

How long can an employee be laid off for?

Lay off and short term working are usually short term situations as a result of the business struggling. It may be that there simply isn’t enough work to go around, or that the business is struggling to afford to pay its employees.

There is no maximum time frame for how long an employee can be laid off or put on short time working. So it really could be anywhere from a day to a few months.

Thankfully, there is something in place to protect employees during this time if they feel they have been laid off or put on short time working where there is no pay or they’re on less than half of their contracted salary: redundancy.

You can claim redundancy if you have been off work, due to lay off, for four weeks or more consecutively, or for a period amounting to six weeks over a thirteen week period. Here you can claim redundancy and hopefully receive a severance package, giving you some financial security and the freedom to find new employment.

When can contracted hours be cut?

It’s important to remember that an employee’s hours can’t just be cut on a whim – so employees needn’t worry about this happening frequently. Besides, an employer, when the business is doing well and everything is going as planned, will always want to provide their employees with their contracted hours because business will be so busy that they have enough work for their employees to complete.

However you can have the number of hours in the contract reduced temporarily, legally, for the following reasons:

  • Where the contract allows for periods of short term, unpaid lay off or short time working.
  • Where the employee agrees to a reduction in working hours, even when the contract does not explicitly state this.

 

In both cases, the employer is not legally obligated to pay employees for their contracted hours where they haven’t been worked.

Some businesses also have agreements with trade unions where employees don’t need to be paid for periods of lay off, but if this isn’t in the employment contract, then it isn’t binding and the employee can fight against that decision.

The final way an employer can cut contracted hours is by actually altering the contract to reflect new hours that the business can afford and genuinely offer. The good news for employees? This can’t happen without mutual agreement, and some negotiation may be possible if you’re in this situation.

voluntary redundancy due to contracted hours not being met

What if the contract doesn’t allow for reduced hours?

Whilst some contracts of employment allow for unpaid or reduced pay lay off or short time working, in the majority of cases these situations are not mentioned in the contract. That means employees are due payment for their contracted hours, even if the business wasn’t able to provide those hours to be worked.

An employer is well within their right to then ask the employee to reduce these contracted hours if they weren’t able to offer them to the employee and may struggle to pay them. The employee does not, however, have to agree. If the employee doesn’t agree and the employer fails to pay them their contracted hours, then the contract has been breached.

What to do if your employer has breached your contracted hours?

If you haven’t been paid your contracted hours as an employee, then the first thing you should do is talk to your employer directly. Express your concerns to your line manager or discuss your options with the HR team at your workplace. They may be able to help explain the situation more effectively and help you come up with a plan of action that works for both employee and employer.

The employer may still refuse to pay, at which point a complaint procedure will need to begin. The next stage of escalation would be through the ACAS early conciliation process. It’s always best to attempt to resolve the issue without needing to escalate it further, but this isn’t always possible.

The next stage would be an employment tribunal. But this comes with a warning. You would need to resign from your position first or be dismissed by your employer, as employment tribunal claims can only be made by those whose employment has ended, so finding a solution internally between employer and employee is almost universally the better option wherever possible.

Taking a new job during short time working

Obviously being laid off or having a change to your working hours via short time working can lead to some problems financially, so a lot of employees in this situation will wonder if they can take on new work during this time to supplement their reduced pay.

You must be cautious, however, and checking your employment contract is key here. An employee contract will usually state whether additional work is permitted outside of the business or not. If it doesn’t state it, then it’s always best to check with the employer to ensure they have given you their consent to avoid complications down the line.

Even if an employee is permitted to take on other work, they’ll still need to ensure they’re available for work with their current employer, as this is a key part of the lay off or short time working deal. If an employee doesn’t return to their full contracted hours when the employer requests it, then they may be deemed to have resigned, removing the chance of any redundancy pay.

Claiming redundancy after reduced hours

An employee can claim redundancy if they’ve been laid off or put on short time working for four consecutive weeks, or for six weeks during a thirteen week period.

Applying for redundancy is only possible when the employee has worked for the employer for two years or more. It’s also important that they can show that they’ve received less than half of their normal pay.

It’s important that the first person an employee tells about their claim for redundancy is the employer themselves in writing. The employer then has seven days to either accept the redundancy or provide the employee with a counter notice.

A counter notice is the employer promising the employee that contracted hours will be met again within four weeks, so the redundancy is rejected. In order to avoid complaints and a potential employment tribunal, the employer must provide the employee with their contracted hours for a minimum of thirteen consecutive weeks once the employee returns to their full contracted hours work.

If the employer doesn’t respond with a counter notice within seven days, the redundancy is automatically accepted.

Seeking legal advice for failure to meet contracted hours

Hopefully today, whether you’re an employee or an employer, you’ve been able to understand what will happen when contracted hours are not met in the workplace.

It can be an incredibly sensitive topic, because the employer most likely will want to provide the contracted hours to the employee, but there may simply not be enough hours to go around. It’s important that the employee seeks legal advice when there are concerns about contracted hours not being met, to ensure they are being treated fairly.

Read your contract of employment, talk with your employer, and hopefully a solution can be found that benefits both employer and employee.

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