What can an Employee do when Contracted Hours are not being Met? - Real Business
A contract of employment sets out the terms that both employer and employee must adhere to during the period of employment. This includes contracted hours, which is the minimum that an employee is expected to work and to be paid for. But what can an employee do about contracted hours not being met? Is this permitted under the contract of employment or can it be disputed with the employer?
In this article, we’ll explain everything you need to know about contracted hours being cut, including when employees can be put onto lay off or short time working, and whether they should be paid for any contracted hours that have not been worked.
What is the law on contracted hours?
Working hours should usually be set out in a contract of employment. This should detail the number of hours that will be worked each week, as well as how the hours will be worked. This could include shifts or fixed days.
It’s important for the employee to ensure that they are happy with the minimum number of hours set under the terms of the contract of employment. Despite any promises made, hours are not guaranteed unless they are written in the contract. For example, those on a zero hour contract are not guaranteed any hours under the contract of employment, so the employer is under no legal obligation to provide any hours.
Ån employer is legally obliged to either provide an employee with the minimum number of hours set out in their contract, or to pay in lieu for these unworked contracted hours. The only exception to this is if an employee agrees with the employer that they will work fewer hours, for example swapping a shift with a colleague.
So, what happens if the employer is unable to offer an employee minimum contracted hours? Read on to find out.
Lay off vs short time working
There may be occasions where there is simply not enough work to go around and an employer is unable to offer the minimum contracted hours to employees. If this is the case, the employer may ask the employee to take unpaid leave in the form of a lay off or short time working.
But what is the difference between a lay off and short time working, and can people be forced to take these options? Let’s take a look in more detail.
A 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 of employment allows for lay off periods, 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 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.
Again, if the employee’s contract states 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
If an employee is laid off or put on short time working, they are entitled to be paid for their contracted hours, even if those hours are not worked, providing they are available for work. The only exception to this would be if the contract of employment stipulates that the employee will not be paid for lay off or short time working, or if they agree to reduced hours.
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 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. This means that it could range from one single working day up to several months.
If an employee has been laid off without pay or put on short time working at less than half of their contracted weekly salary, they may be able to claim redundancy. This redundancy claim can be made when the employee has been off work for either four consecutive weeks or for six weeks in a 13 week period.
When can contracted hours be cut?
Many people rely on their contracted hours to pay the bills and support their families, so it may come as a shock and cause worry if their contracted hours are cut. However, there are some circumstances in which the number of hours written in a contract of employment may be reduced temporarily.
If there is a clause in an employee’s contract of employment that allows for unpaid lay off or short time working, the employer is able to legally reduce the contracted hours without pay on a temporary basis. Alternatively, an employee may agree to a reduction in contracted hours. Both of these situations mean that an employer is not obliged to pay the employee for their contracted hours, if those hours have not been worked.
In some businesses, there may also be an agreement between the business and a trade union that states that the company does not have to pay staff for periods of lay off. However, this agreement must be outlined in the contract of employment for it to be contractually binding.
The only other way that an employer can lay off an employee without pay is by altering the terms of the contract of employment, with mutual agreement from the employee. This could involve adding a clause that states that any reduction in contracted hours will be made by mutual agreement.
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. In this case, the employee must be paid for their contracted hours, whether or not they are required to work them.
It is perfectly legal for an employer to ask the employee to change their contracted hours. However, they cannot force the employee to accept the proposal. If the employee does not agree to the change and the contracted hours are unpaid, this amounts to a breach of contract.
If an employee have not been paid for their contracted hours, they should first discuss this with the employer. This could be their manager or HR department. Often this will be the result of an error in the payroll process which can be quickly resolved.
However, if the company refuses to pay, the employee will need to follow the grievance or complaint procedure. The next stage of escalation would be through the ACAS early conciliation process. Within this process, the employer and employee can attempt to reach a resolution without the need to go to court.
If this fails, the employee may choose to take their claim to an employment tribunal. However, it’s important to note that breach of contract claims can only be made in the employment tribunal when the employment has ended, so the employee would need to resign from the role before a claim can be made.
Taking a new job during short time working
Unpaid lay off or short time working can put strain on finances, so it’s understandable that many workers consider taking on other work during this time.
Before deciding to take on work during lay off or short time working, it’s important for the employee to check their contract of employment. This will often state whether the employee is permitted to take on other work outside of the business. If the contract does not mention taking on alternative work, it’s best to speak to the employer to ensure that they give their consent.
However, if an employee decides to take on other work during lay off or short time working, they will need to ensure that thety are still available for work. If an employee is unable to work for their original employer when asked to return for their contracted hours, this could be taken as a resignation, meaning that they would not be entitled to any redundancy payment.
Claiming redundancy after reduced hours
If an employee has been laid off or put on short time working for over four consecutive weeks, or for six weeks in the 13 week period, they may be able to claim redundancy.
To be eligible for redundancy, the employee will need to have been working for the employer for a minimum of two years. They would also need to demonstrate that they have earned less than half of their normal pay during the period of lay off or short time working.
To make a claim for redundancy, the employee will first need to provide their employer with written notice that they intend to claim redundancy. The employer then has seven days to decide whether to accept the redundancy claim or to provide counter notice.
Counter notice means that the employer does not accept the redundancy claim as work will be available within four weeks. This work must last for a minimum of 13 consecutive weeks. If counter notice is not provided by the employer, they are deemed to have accepted the redundancy claim.
Once the redundancy claim has been accepted, the employee will then need to provide notice of their resignation within three weeks. The notice period required should be outlined in the contract of employment.
Can an employer make me work over my contracted hours?
The contract of employment should always set out the number of hours that an employee is expected to work, as well as how these hours will be worked, for example as shifts or on set days. Any additional hours worked are classed as overtime and should be mutually agreed between the employee and employer. The employer cannot force an employee to work over their contracted hours – this would amount to a breach of contract.
Can an employer change contracted hours without notice?
Working hours are set out in the contract of employment. This means that they cannot be altered without the express agreement of both the employee and employer. The only exception to this would be if there were a clause within the contract that states that the employer is able to vary or reduce the contracted hours without the agreement of the employee.
Seeking legal advice for failure to meet contracted hours
In this article, we’ve explained what happens when contracted hours cannot be met by the employer, either through a lack of work to offer to the employee or a challenging business situation.
Contracted hours can be a complex issue and every case is unique. The employee should always seek professional legal advice if they’re unsure abouttheir employment rights, ensuring that they are receiving what they are entitled to and being treated fairly.
If an employee is struggling with contracted hours not being met, it’s best to contact an employment solicitor. They can talk the employee through their options and advise on whether a claim could be made at an employment tribunal.