Paid staff for double time on a bank hol but contract doesn't state they get double.. [Archive]

bounce

1st January 2012, 23:27

Hi

I took over a business about 6 months ago, and I took on 4 staff through tupe transfer.

On the contract of a particular employee it says she gets paid double time if she does overtime on a bank holiday.

This employee is contracted to 16.5 hours a week, and normally does them hours over mon, tues and weds. She said to me that previous employer used to pay her double time on a bank hol, and I have paid her double on bank hols even though she'd normally work on a monday.

As I've now realised in her contract it doesn't say that she would get paid double time unless it was overtime on a bank hol or public hol, I may have paid her wrong, and as she likes to point out on many occassions her contract says this that and the other, I plan to pick her up on this and tell her, her contract doesn't state the double time, and I need to deduct next pay with the extra I paid her on previous bank hols - am I able to do this?

I only paid it her as she said previous employer paid her double, but as she likes to throw in my face things about her contract, I feel I should enforce the situation with the bank hols and recover my money for the double pay..

OldWelshGuy

1st January 2012, 23:32

My view would be that if you agreed to pay, then you have actually created an oral contract with her on each occasion.

What you should have done was checked her contract before agreeing to pay her double time.

Going forward however you can tell her to whistle.

bounce

2nd January 2012, 00:05

I see your point, I only paid this based on what she told me...

As the written contract states otherwise, surely I should have a leg to stand on?

TotallySport

2nd January 2012, 00:14

have you asked the former owner what they did? surely they be able to clear the matter up, then ring ACAS for the best way to proceed.

Steve Sellers

2nd January 2012, 09:51

have you asked the former owner what they did?

OP this should be your first step. As the bonus isn't mentioned in the contract the only way that you can be bound to pay the double pay is if the former employer created an additional term of the contract through the course of custom (the custom of paying the bonus).

IF the former owner says the double payment was a regular occurrence then check to see whther or not the payment was a right, or whether it was discretionary.

If the employee is wrong, or the payments were only discretionary then on this occasion I would write the money off. You did agree to pay the money on this occasion, and unless you can prove she lied to get the payment (then you should be looking to discipline her), you should not deduct the money.

However if discretionary you can then withdraw the payments and could well be advised to issuing new terms & conditions of employment.

Employment Law Clinic

2nd January 2012, 11:12

I'm not clear where there was "agreement" to pay her double; payments were made while the facts were established, but that doesn't result in an agreement to pay double time. If it did, that could be said to apply for future bank holidays too.

Unless it turns out that the previous employer did pay her double time, I'd treat this as an overpayment arising due to a misunderstanding, and make arrangements to recover this. I doubt she'd try to make a tribunal claim without evidence - previous pay slips.

Karl Limpert

Steve Sellers

2nd January 2012, 11:26

I'm not clear where there was "agreement" to pay her double;

I implied it by the fact the OP stated the employee claimed she was entitled to the payment and the OP then made the payment. If I were advising the employee and she had continually received the extra payments previously, then I would be telling the employee that there is an ancillary contract and not a misunderstanding.

OldWelshGuy

2nd January 2012, 15:17

I have to agree with Steve in that I would treat it as an ammendment to the initial contract (an oral addition), but if that was based on a lie, then disciplinary action could follow for the employee, if (as this appears) the employe is troublesome by being a jobsworth who continually refers to her/his contract, then i would see this as an opporutnity to remove them from work.

The difficulty would be proving it was malicious attempt to get money, and not a simple mistake on the aprt of the employee

Business News

2nd January 2012, 16:55

Im firmly with the young welsh guy on this, you have set a precedent by paying double time so will have issues going back to normal time payment. As your reasoning to pay double time was based upon information provided to you by the employee that is untrue then I'd have an issue with the employee and let them know that. If I was in the situation I'd push a new contract under their nose that could be identical to the existing one just dated January 2012. The employee coudn't reject this and once signed you'd be back to normal pay for bank holidays but have one untrustworth employee.

As a footnote, I get all my employees to sign new contracts each year so that amendments can be made as legislation and the state of the business dictate. That keeps everything current and everyone on the same page.

Employment Law Clinic

2nd January 2012, 17:20

We are working on very limited information, but based on that I wouldn't think a precedent or agreement has been established.

I implied it by the fact the OP stated the employee claimed she was entitled to the payment and the OP then made the payment. If I were advising the employee and she had continually received the extra payments previously, then I would be telling the employee that there is an ancillary contract and not a misunderstanding.

If it’s been continuous extra pay for bank holidays, I’d agree with you Steve. But in this case, the OP took over the employee about 6 months ago, so there would be very limited bank holidays to go on, and if it is the case that the employee wasn’t paid extra previously, I would say it was reasonable to find an error in the pay at this early – given the limited occasions – stage.

The difficulty would be proving it was malicious attempt to get money, and not a simple mistake on the aprt of the employee
This is the problem I have with disciplinary action: there is little to say it wasn’t a genuine mistake on the employee’s behalf. It could be argued that they nearly always refer to the contract, but conveniently didn’t on this occasion, not the strongest of arguments though.
As a footnote, I get all my employees to sign new contracts each year so that amendments can be made as legislation and the state of the business dictate. That keeps everything current and everyone on the same page.
And what happens if the employees refuse to sign a new contract?

Karl Limpert

Business News

2nd January 2012, 17:43

And what happens if the employees refuse to sign a new contract?

I've never had an employee refuse any contract amendments. Any changes are explained and they are not coerced into signing. It comes down to employer employee relations and whether the employees trust their employer or not.

Employment Law Clinic

2nd January 2012, 17:52

It comes down to employer employee relations and whether the employees trust their employer or not.

Thankfully then you don't have an employee like the OP - or many I come across.

Karl Limpert

Steve Sellers

2nd January 2012, 18:03

We are working on very limited information, but based on that I wouldn't think a precedent or agreement has been established.

If it’s been continuous extra pay for bank holidays, I’d agree with you Steve. But in this case, the OP took over the employee about 6 months ago,

I was basing my advice on the OP establishing from the former owner that they paid bank holidays at double and he then continued to do so (he acted in no way at odds with my presumption of an agreement re. double pay). The precedent set would include any payments made by the previous owner.

I admit that if the payment was made by "mistake" then the payment could be recovered but as a business decision(cost of running a grievance) not a legal one it would make more sense to write it off.

I think if the former owner is adamant that double payment were never made, and the employee has worked there for a substantial period of time there is certainly a case to put forward to discipline. Most workers(participially those on low pay) don't make mistakes when it comes to their pay. This will be especially so assuming the OP provides itemised pay slips? - also establishing whether or not the employee was ever paid double pay.

Business News - I wouldn't push it under the employees nose, a little bit more diplomacy will be called for - especially given that this employee is not backwards in expressing their contractual rights. But I think you go on to say as much in your last post.

ps Business News - agree with Karl - "Thankfully then you don't have an employee like the OP - or many I come across."

Employment Law Clinic

2nd January 2012, 18:29

I was basing my advice on the OP establishing from the former owner that they paid bank holidays at double and he then continued to do so (he acted in no way at odds with my presumption of an agreement re. double pay). The precedent set would include any payments made by the previous owner.

If that is established, I totally agree with you Steve. Just waiting to see if that is confirmed, but if not (or the OP can't contact the transferee for any reason), I would work on the basis that there have been overpayments for the occasional bank holidays in the last six months.

Karl Limpert

bounce

2nd January 2012, 20:57

I havent contacted the previous owner yet, as this only came to light in last few days after reading through their contracts...however, the only reason why I paid double time was as the employee told me thats what they were paid...

On the contract it only says overtime on a bank holiday/public hol is double time...so this says that she isnt entitled to double pay on her normal day in...

During the tupe transfer nothing was mentioned about this double pay on bank hols if your shift fell on a bank hol...

If the previous owners dont respond, cant I just base it based on the contract and recover previous monies - as its not stated on there and I only paid it based on my employee telling me thats what she has been paid before on a bank holiday?

Steve Sellers

2nd January 2012, 21:08

If the previous owners dont respond, cant I just base it based on the contract and recover previous monies - as its not stated on there and I only paid it based on my employee telling me thats what she has been paid before on a bank holiday?

You can recover the money as Karl advised. When you say previous payments are we talking from previous bank holidays such as summer, or just the ones during the Christmas period?

bounce

2nd January 2012, 21:49

You can recover the money as Karl advised. When you say previous payments are we talking from previous bank holidays such as summer, or just the ones during the Christmas period?

The summer 1s...she worked xmas ones as she works mon and tues normally, so now that I know her contract doesn't state double on bank hol unless its overtime, I won't be paying it for december bank hols..

hmig89

2nd January 2012, 21:53

I would get some legal advice, but staff are normal people and I think if they give up their time to work on a bank holiday they should be rewarded with at least time and a half.

Employment Law Clinic

2nd January 2012, 22:07

During the tupe transfer nothing was mentioned about this double pay on bank hols if your shift fell on a bank hol...

Legally, the previous employer should have disclosed the details of the contracts, and they could have been taken to a tribunal if they hadn't complied with this. As this is an obscure area, not sure, but I doubt this could be done now - after the typical 3 month window.

The summer 1s...she worked xmas ones as she works mon and tues normally, so now that I know her contract doesn't state double on bank hol unless its overtime, I won't be paying it for december bank hols..

There was only one summer bank holiday in the last six months (late August), as most fall early/late in the year. It's on this basis - that probably only one previous occasion (maybe two, if the OP took over in late May) - why I don't think any principal has been established.

I would get some legal advice, but staff are normal people and I think if they give up their time to work on a bank holiday they should be rewarded with at least time and a half.

For a few hours of overtime, I can't see that it's worthwhile getting paid legal advice. If the employee pursues the matter, worthwhile as this could establish their future pay, but for this occasion I would suggest formal legal advice would be disproportionate in value to the OP... unless the employee pursues matters.

Karl Limpert

bounce

2nd January 2012, 22:17

The only information given during the tupe transfer was the contract, their hourly rate, length service etc. No extra information was given, therefore I only have the contract to go on...

arcon5

2nd January 2012, 22:44

I would get some legal advice, but staff are normal people and I think if they give up their time to work on a bank holiday they should be rewarded with at least time and a half.

Well thats another moral debate in itself, ops looking for legal information.

Whether paying them above their usual rate is something the employer should decide, not the employee -- if they don't like it then they didn't have to sign the contract in the first place.

sirearl

2nd January 2012, 23:06

Well as its traditional to pay double time for working bank holidays and the previous employer has done this for a protracted period. I sense the OP is looking for a pile of trouble.

Earl

Steve Sellers

3rd January 2012, 00:45

Well as its traditional to pay double time for working bank holidays and the previous employer has done this for a protracted period. I sense the OP is looking for a pile of trouble.

Earl

Traditional amongst who? I have had over a dozen jobs in my time and I don't recall any paying double time for working bank holidays.

ET's have no regards to "traditions" or as I like to refer to them as "common misconceptions"(such as the one you have just expressed). The OP has done the right thing seeking advice on the matter.

TotallySport

3rd January 2012, 00:58

when i started it, it was standard practise for double pay on bank holidays and sundays (when they started trading on sunday), time and a half on saturdays and time and a half for unsocialable hours which was classed as after 8pm, you even got triple time on christmas day.

Although they changed it to time plus a days holday, and not double time, now its just single time, oh how things change.

TotallySport

3rd January 2012, 00:59

i will point out that was with a supermarket, but bar work was very different.

sirearl

3rd January 2012, 10:31

Employment Law Clinic

3rd January 2012, 10:35

From Business Link:

Note that if you allow a worker time off for bank and public holidays over a significant period of time, it may become an implied term of their contract via custom and practice, ie the term is not actually in the contract document but is still part of the contract of employment.

Earl

This isn't disputed by anyone Earl. The question is whether the employee has been paid a higher rate for working bank holidays. At the moment, it's only the employee's word to go on, but the contract (that the employee stated provided a higher rate of pay) suggests otherwise.

Karl Limpert

lesliedocherty

3rd January 2012, 10:49

We added bank holidays into holiday entitlement and treat them as normal days, staff like having more holidays and we never have any arguments about who works them and how much they get paid.
A few big companies now do this ie Halfords

MikeJ

3rd January 2012, 11:27

bounce

3rd January 2012, 19:10

Isn't the confusion here whether the time being worked is "time" or "overtime".

If you expect to get a bank holiday off, and come in to work it, then it's overtime. And according to the contract, you get double time. If you're not given bank holidays off, then it's not overtime, and you just get standard rate.

well this contract states they get the usual 5.6 weeks and if their working day falls on a bank hol they need to use their holidays to book it off if they want the day off...