Contracted Hours

[Ra9jd]

This question comes as a member of staff where a friend has recently been offered a job by a company franchisee. The interview and training took place with the franchiser before the franchisee had opened their store. A 16 hour a week contract was agreed verbally. A couple of months down the line, and a contract has been requested by the employee, which states that the contract is for 16 hours a month, even though over the past few months they employee has been working 16 hours a week. This has been addressed and the franchisee has stated that 'everyone's contract with the franchiser are 16 hours a month, and so there is nothing to worry about, business is picking up and we will still give you 16 hours a week'.

Holidays have also been given as per 16 hours a week verbally, which I will have the employee get in writing.

The issue are two things:

1. As the employee has obtained funding for their child at nursery (30 hours a week), there is a worry that this may come back and be an issue as they are not contracted to 16 hours a week (a letter was previously given by the franchiser to obtain the funding).

2. As the employee is now only contracted to 16 hours a month rather than a week, at times, the employer has said 'to go home a few hours early' during a shift. The worry here is that these hours will be unpaid. What leg does the employee have to stand on as the shift has already been given (whether contracted or not and could be considered overtime). As the shift has started, can it be cut short without pay?

Thanks in advance for your guidance.

 

[IanSuth]

Your scenario makes little sense - if this is truly a franchisee/franchisor model then the franchisee just pays an amount of £ and has control as long as they follow the franchise rules, what you are describing seems to be an employer/employee type relationship. @Newchodge your thoughts ?

A Franchisor may dictate when something should be open etc but not be dictating exact shift times

What sector is this in ?

 

[Ra9jd]

This is in the food/retail sector - it is a desert shop where customers would eat in/take away/ order deliveries.

So from your comment above, I am gathering that the hours given as per contract can be changed against what was agreed with the franchisor, and the franchisee is also able to give contracted hours different to what the franchisor usually gives, however in this case, they have decided to do as per what the franchisor does which is perfectly legal?

The second point around the hours is more between the employer/employee, where a shift has been given e.g. 1pm - 8pm. As per verbal agreement these are within the contracted hours, however as per the 'in writing' contract these are above the contracted hours. Even if these are overtime hours, can the employer at 5pm say - 'it is rather quiet today, go home early without pay' ?

I am also aware that the employee has only been working for a few months, is in their probationary period as well as less than 2 years working for the company and so can therefore have their contract terminated at any point.

Many thanks in advance.

Your scenario makes little sense - if this is truly a franchisee/franchisor model then the franchisee just pays an amount of £ and has control as long as they follow the franchise rules, what you are describing seems to be an employer/employee type relationship. @Newchodge your thoughts ?

A Franchisor may dictate when something should be open etc but not be dictating exact shift times

What sector is this in ?

 

[IanSuth]

Sorry i read it wrong i thought the franchissee and the person having their hours changed were one and the same person - hence the confusion over employment status

What matters is what was in the contract of employment - unless there is something in writing somewhere (even a copy of the advert they applied to or an email) which states 16hrs per week then they are stuck with what is in that contract (16hrs per month), whilst a verbal contract is a contract they are hard to prove.

If the franchisee completed and signed a form saying 16hrs a week for the nursery that would be a good start - but as you say <2yrs and still in probation they may just be let go

The other confusing thing was the statement 16hrs per week holiday - do you mean they have it in writing they are entitles to x weeks per year and each week is defined as 16hrs ? If so that is to their benefit as even if they only averaged 1 hr a week for the year their 5.6weeks leave would have to be based on 16hrs a week not the average of their actual hours. But i dont think it would be enough to try and claim they were entitled to 16hrs paid work a week even if it implies that was planned to be the case (ps if this was the franchisee trying to say when you are on hols you only get paid for a 16hr week no matter how much you have done then that is also not right if actual average hours are over 16 per week, they would have to be paid based on their average week, you cant pay less than statutory you can have a contract allowing more)

 

[Ra9jd]

Sorry i read it wrong i thought the franchissee and the person having their hours changed were one and the same person - hence the confusion over employment status

What matters is what was in the contract of employment - unless there is something in writing somewhere (even a copy of the advert they applied to or an email) which states 16hrs per week then they are stuck with what is in that contract (16hrs per month), whilst a verbal contract is a contract they are hard to prove.

If the franchisee completed and signed a form saying 16hrs a week for the nursery that would be a good start - but as you say <2yrs and still in probation they may just be let go

The other confusing thing was the statement 16hrs per week holiday - do you mean they have it in writing they are entitles to x weeks per year and each week is defined as 16hrs ? If so that is to their benefit as even if they only averaged 1 hr a week for the year their 5.6weeks leave would have to be based on 16hrs a week not the average of their actual hours. But i dont think it would be enough to try and claim they were entitled to 16hrs paid work a week even if it implies that was planned to be the case (ps if this was the franchisee trying to say when you are on hols you only get paid for a 16hr week no matter how much you have done then that is also not right if actual average hours are over 16 per week, they would have to be paid based on their average week, you cant pay less than statutory you can have a contract allowing more)

No problem.

So in writing it says 16 hours a month, verbally it was 16 hours a week. I guess there is an argument to turn around say 'this doc (for nursery) says you are offering me 16 hours a week' which they can hopefully come to some arrangement over.

So the holiday that is being offered is based on a 16 hour per week contract (16.8 days for the year based on a 3 day week). We will try to get this in writing so that it cannot be argued over in future. Thanks for this.


I think the only question that is unanswered which is a difficult one is the second point around the hours, where if a shift has been given e.g. 1pm - 8pm. As per verbal agreement these are within the contracted hours, however as per the 'in writing' contract these are above the contracted hours. Even if these are overtime hours (outside of the contracted hours), can the employer at 5pm say - 'it is rather quiet today, go home early without pay' ?

 

[IanSuth]

No problem.

So in writing it says 16 hours a month, verbally it was 16 hours a week. I guess there is an argument to turn around say 'this doc (for nursery) says you are offering me 16 hours a week' which they can hopefully come to some arrangement over.

So the holiday that is being offered is based on a 16 hour per week contract (16.8 days for the year based on a 3 day week). We will try to get this in writing so that it cannot be argued over in future. Thanks for this.


I think the only question that is unanswered which is a difficult one is the second point around the hours, where if a shift has been given e.g. 1pm - 8pm. As per verbal agreement these are within the contracted hours, however as per the 'in writing' contract these are above the contracted hours. Even if these are overtime hours (outside of the contracted hours), can the employer at 5pm say - 'it is rather quiet today, go home early without pay' ?

Ok firstly the holiday bit - UK law is quite specific - and the wording of the contract REALLY matters, if it says "you are entitled to 16.8 days per year " then you have to work out what a "day" is by averaging over the preceeding weeks
If it says "you are entitled to 5.6 weeks holiday and each week is 16 hours" then that 89.6 hrs is the minimum they can get.

The second part is "it depends what is written in the contract", if the contract says "normal hours of work are between 9:00-17:00 however sometimes level of business activity may mean you are not required or you need to work beyond these hours at the reasonable request of management, however you will always get paid a min 16 hrs work a month" then they don't have a leg to stand on - however if they say something else who knows

Basically - look at what they have in writing (form whatever means) if it is not written there then not a lot they can do - but just because it is written there does not mean it is legally correct.

If they are that worried then get an appt at Citizens Advice and take the contract with them (or see if their household insurance offers any free legal cover)

 

[Ra9jd]

Ok firstly the holiday bit - UK law is quite specific - and the wording of the contract REALLY matters, if it says "you are entitled to 16.8 days per year " then you have to work out what a "day" is by averaging over the preceeding weeks
If it says "you are entitled to 5.6 weeks holiday and each week is 16 hours" then that 89.6 hrs is the minimum they can get.

The second part is "it depends what is written in the contract", if the contract says "normal hours of work are between 9:00-17:00 however sometimes level of business activity may mean you are not required or you need to work beyond these hours at the reasonable request of management, however you will always get paid a min 16 hrs work a month" then they don't have a leg to stand on - however if they say something else who knows

Basically - look at what they have in writing (form whatever means) if it is not written there then not a lot they can do - but just because it is written there does not mean it is legally correct.

If they are that worried then get an appt at Citizens Advice and take the contract with them (or see if their household insurance offers any free legal cover)

Brilliant. Thank you very much.