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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 47338
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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We have an employee who is currently pregnant and has asked

Resolved Question:

We have an employee who is currently pregnant and has asked for her contract to be changed from full time to a casual working agreement which we have agreed to.
This employee has less than 1 years service and is 2 months pregnant.
The way we work is by annualised hours and this employee has not been able to fulfil her contracted hours.
She gas requested via email and signed to say that she is happy for us to take the hours owed back and deduct from her august pay.
Can we do this or do we need to pay the amount of contracted hours unless we can prove that she made herself unavailable for work ( Not Sickness)
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.
Ben Jones :

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

Ben Jones :

What do you hope to achieve please?

Customer:

Hi we want to be able to deduct the hours owed however as this is contractual can we do this? If the employee has emailed permission does this superseed the contract?

Customer:

Usually we only deduct if we can prove the employee made themselves unavailable to work.

Customer:

Can we deduct the hours owed based on the employees email consent or are we breaking contract/breaking the law?

Ben Jones :

OK, thank you, ***** ***** this with me - I will look into this for you, get my response ready and get back to you on here. No need to wait around and you will get an email when I have responded, thank you

Customer:

Can you come back to me today?? Please its quite urgent if your able to that would be great

Ben Jones :

Hi, thanks for your patience. Even though the hours she is entitled to are contractual, you can insert a variation to her contract to reflect the new terms under which you want to operate with her. However, you must ensure that this is done with her consent and that you have a signed agreement by her that confirms she is happy for these changes to take place. Only then will you be safe from any potential breach of contract issues. So what you propose to do is acceptable as long as it is done with the employee’s consent and there is a clear written and signed agreement by them to confirm their acceptance of these changes.

Hope this clarifies your position? If you could please let me know that would be great, thank you

Customer:

Ah sorry mabe I have not been clear. She is resigning from her contract and moving to a casual working agreement.

Customer:

She owes us about 30 hours which she did not work but is contractual

Customer:

We do not want to issue her with another contract but we want to deduct the money for the hours she didn't work. She has sent an email to say she is happy for us to do this but I am nervous as the hours are contractual and usually we would only deduct if we can prove the employee had made themselves unavailable for work.

Customer:

Please advise

Ben Jones :

Just to check, why has she not been able to fulfil her contracted hours?

Customer:

she has an annualised hours contract and usually we just pay the contracted hours unless an employee makes themselves unavailable for work in which case we can deduct the money owed. There is no evidence that this person made herself unavailable for work and so usually we would pay the hours as normal. However this individual has emailed to say that she is giving us permission to deduct the hours owed from her next pay.

Customer:

I hope that makes sense. Basically if we issue a contract that states we will give an employee 2080 annualised hours per week and they leave us owing say 20 hours out of that 40 hours in the month can we deduct this or do we need to pay?

Customer:

If an employee states despite a contract that they are happy to be deducted can we do this or does the contract supersede.

Ben Jones :

hi, as long as you have the employee's written consent to make the deductions then that would supersede the contract and you can make these as necessary. However, as mentioned you must ensure there is a written and signed agreement by them allowing you to do this before you can proceed

Customer:

Thanks I will get her written consent - does an email surfice?

Ben Jones :

you need something that is signed so a letter that is signed with her consent is best

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