Employment Lawyers Can Answer Your Employment Law Questions
Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today.
What does the contract say about these extra rates - are they guaranteed, at the employer's discretion?
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
So are they trying to apply this to Christmas just passed?
Yes I have just received my payslip and have only been paid normal time for Christmas day and new years day
Were you told of this policy before the time it applied to?
a notice was put on the board around the end of november
And you were aware of this at the time?
only after the notice was posted
yes but before taking the time off I mean?
yes I had to take the sat off before Christmas , the 21st I think.
and how long have you worked there for?
6 years. This is the 1st time that this has been imposed
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.
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?
Hi are you still there?
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.
No problem, thanks for getting back to me. All the best