How do these companies get away with treating their employees like this?

[casey]

A relative was working in a seasonal job on a "fixed salary" with a hint that he may be able to stay over the winter. He put in over ninety hours overtime in two weeks but as he "was on a fixed salary" he was not entitled to overtime. He had a few days off, supposedly in lieu of overtime worked but instead his pay was deducted for the days he did not work. When he queried this he was told not to cause any problems as this would impact on the possibility of being retained at the end of the season.

He was kept dangling all season and thought that he would be staying on but has now received a one week notice to leave at the end of the season.

What are his rights regarding the overtime payments - I think that if all his hours and pay were totalled he would not have received even the minimum wage although this is something that I would have to check with him.

[honeybee13]

Hello there.

 

I would be upset too, it sounds as if they led him on. Can he prove the hours he worked in writing please?

 

I expect the guys will be along later.

 

My best, HB

[casey]

Thanks for your reply. No, he can't prove the hours in writing most of the other people working there could confirm it - except his immediate supervisor who doesn't want anyone to think that he made a mistake. They just keep quoting that he doesn't get overtime as he is on a salary but when he gets a day off they don't pay him - so they just seem to work on what is best for them. So he has worked, as an engineer, for around £3 an hour - unbelieveable that these companies can get away with it.

[becky2585]

What does his contract say?

[casey]

Not sure about a contract - think it was just a simple letter offering him the job but will check myself later on tonight and get back on here. Have been checking online the reviews this company has and it really is disgraceful - they don't treat the customers any better than the staff.

[casey]

Just found out now that they led him to believe he would be staying on after the end of the season but he's now found out that he has to leave and with only two days' notice.

I have yet to look at any contract.

[Sidewinder]

Has he taken any paid holiday in the time he has worked there?

 

He might struggle to prove that pay was due for overtime, but should certainly hit them with a claim for accrued holiday pay if they try to wriggle out of that as well!!

[casey]

No, he hasn't had any paid holiday. Any days off have been deducted from his pay. When he queried the overtime he was told that the hours would even out over the winter period. However, when everyone else got their letters giving them a week's notice to terminate their employment he didn't get one, so yes, when all the hours are totalled he was paid far less than the minimum wage. He recieved only..

two days notice because the person that was supposed to give him his letter was away. Unbelieveable what these companies get away with and the above is only the tip of the iceberg.

The company are telling the staff that they will receive a bonus at the end of the season as long as they stay until the end - it is only holiday to which they are entitled.

[RosaofEdge]

If he has been paid below the minimum wage he can make a claim in the employment tribunal for wages due at any time during the contract within 3 months of the date of termination of employment.

 

Another possibility may be to bring a claim for unlawful deductions from wages (s13 Employment Rights Act 1996) for the days when his pay was deducted. It seems to me that you are saying his employer allowed him to take Time Off in Lieu for some of the overtime worked but then deducted pay for the days he took off. He might want to try claiming his full pay for those days.

 

Problem with this is time limits - claim needs to be made within 3 months of the date when the money for those days was "properly payable". This would be the pay day when he should have been paid for those days off in lieu. If there was a series of such days you try claiming for all of those days within 3 months of the last one.

 

It might also be possible to bring this claim as a contractual claim for which the time limit is to bring the claim within 3 months of termination of the contract- particularly if his agreement to work such large amounts of overtime was obtained with a promise he could take time off in lieu.

 

So in the tribunal claim he would specify the days for which he was not paid

Identify the basis of the agreement with the employer to pay him for these days (who agreed this, what did they say, what did he say)

Identify the sums that were deducted/ the sums that he was entitled to be paid and has not been paid

State that this is an unlawful deduction from pay under s 13 ERA and also a breach of contract

And ask for an order that the employer pays these sums.

 

 

Finally make sure he claims for any holiday pay in lieu outstanding at the end of the contract, and any notice money due.

 

Here is a handy link to information about minimum entitlement to holiday pay.

 

https://www.gov.uk/holiday-entitlement-rights

 

there is a tool which can help calculate entitlement pro rata and for workers who work different numbers of days per week.

 

I am assuming his contract of employment is not more generous than his statutory rights. For a 5 day a week worker the statutory entitlement is 28 days a year (if you are a worker who gets bank holidays this is equal to 8 bank/public holidays and 4 weeks a year). If you work only part of a year you have to pro rata the entitlement.

 

Regulation 14 of the Working Time Regulations gives an entitlement to pay in lieu of holiday on termination of employment. A tribunal claim for holiday pay pursuant to Regulation 14 should be brought within 3 months of termination. State that he was entitled to x days but took only y days paid annual leave during his period of employment and therefore is owed holiday pay at ££ per day for (x-y) days.

Edited November 3, 2012 by RosaofEdge