How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.
Ask Ben Jones Your Own Question
Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 47388
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
29905560
Type Your Employment Law Question Here...
Ben Jones is online now

is an employer of care home staff within his rights to post

Resolved Question:

is an employer of care home staff within his rights to post a memo to his care staff saying that anybody who is off sick within 2 weeks of Christmas will not be paid the extra hourly rate for working the holiday days i.e. Christmas day , boxing day & new years day?
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today.

Ben Jones :

What does the contract say about these extra rates - are they guaranteed, at the employer's discretion?

Customer:

in the contract the rate for bank holiday work is time and a half. There is no mention in the work contract that says these payments can be changed. I am never off work but had to take the Saturday off before Christmas due to severe stomach pains which were discovered by my doctor to be linked to medication I was taking

Ben Jones :

So are they trying to apply this to Christmas just passed?

Customer:

Yes I have just received my payslip and have only been paid normal time for Christmas day and new years day

Ben Jones :

Were you told of this policy before the time it applied to?

Customer:

a notice was put on the board around the end of november

Ben Jones :

And you were aware of this at the time?

Customer:

only after the notice was posted

Ben Jones :

yes but before taking the time off I mean?

Customer:

yes I had to take the sat off before Christmas , the 21st I think.

Ben Jones :

and how long have you worked there for?

Customer:

6 years. This is the 1st time that this has been imposed

Ben Jones :

Ok so there is a clause in your contract which entitles you to extra pay for working bank holidays. The clause appears to be guaranteed and does not allow the employer to vary it and neither does it give them discretion on whether they can apply it or not. So you can argue that it is a guaranteed payment clause which allows you to expect the extra pay as long as you meet the conditions of working on a bank holiday. You will have an extra argument by arguing that you have always been paid these payments and they have been applied consistently so as to create a stronger point that they have become a contractual term and there is no indication either in the contract, or through past practice, that the employer has any discretion over whether to pay them.


 


Whilst the employer has tried to vary that clause by issuing a memo, doing so would actually amount to a change to your contract of employment as it seeks to vary a contractual clause. They cannot just make such changes and would either need your consent, or they would have to issue you notice to terminate your existing contract and re-issue you with a new one containing these changes, neither of which has happened. As such their actions can easily amount to a breach of contract and by not paying you the contractual enhancements you are due it could amount to an unlawful deduction from wages.


 


You may challenge the employer over this, advise them of the above and request that the payments are made. If necessary you can raise a grievance and if the money is not paid as requested, the last option is to pursue them in the tribunal for the return of what you are contractually owed.

Ben Jones :

Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this?

Ben Jones :

Hi are you still there?

Customer:

yes I'm still here, sorry but my computer decided to clear itself and I've only just sorted it. You have answered my question and I will approach my manager tomorrow with this information . Thank you very much for your time.

Ben Jones :

No problem, thanks for getting back to me. All the best

Ben Jones and other Employment Law Specialists are ready to help you

Related Employment Law Questions