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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 47353
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I work work from home call centre that provides staff

Customer Question

I work for a work from home call centre that provides staff to the RAC. They provide us equipment to be able to have calls directed to our home phones. This equipment seems to be somewhat temperamental. It is called CCU. The CCU seems to sometimes send too many calls through at once or doesn't communicate with the handset so I can't answer the calls. Everyone has issues now and again but sometimes it goes down for one agent, just like myself, until the call centre agency have someone from IT come ooh at it. In my case, IT took 3 days to attend to me, so I wasn't able to take calls for 12 hours that I was scheduled in for. During that time, I was told I had to wait at my computer to be available for when It turned up, even though they often take at least a day to turn up. I don't get paid for nay of that time and my bonus was also not achieved as it was considered that I was not available even though it was the CCU they ask us to work on it that was faulty and IT weren't available for a few days. Do I need to be available to them and sit at my computer for the whole of a Sunday and a Monday even when I am not being paid for it? Is it ok that I don't achieve my bonus due to equipment failure on their part that I cannot fix? No other agents were affected at that time (though a few had experienced it going down when it first happened but theirs came back on when mine didn't). I need advice on this!
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
Hello, my name is***** am a solicitor on this site and it is my pleasure to assist you with your question today. I presume you work on a self employed basis? Do you have a contract which states your eligibility to the bonus and when it may/may not be paid?
Customer: replied 1 year ago.
No, we are not self employed. I have a contract with Sensee, the agency. The bonus is not covered in the contract. When the job was advertised, it states that the hourly rate is £7.25 per hour plus potential bonus of £1.50 per hour, but they only told us what the terms of the bonus structure were a month after we started. They seem to be changing the bonus structure all the time. Last month I didn't get it either because I was off sick for a few days, even though the email we were sent re the bonus structure did not include illness as being a reason to not achieve the bonus. There are three parts to the bonus - adherence, compliance and hours booking. Last month I should have achieved hours booking and compliance but not adherence as I had been off sick, but I wasn't paid anything. This month, I have only achieved hours booking as I have been penalised for adherence for the CCU not working
Customer: replied 1 year ago.
Sorry, that was very rude of me! Hi Ben, I'm Keren :) Thanks for your help, much appreciated. My contract with Sensee means they pay my NI and we have a pension plan in place too, but the bonus was only in the advert which is one of the reasons I first took the job. But there was no bonus structure in place when I first started in May, they only introduced it in July even tho it was in the job advert. The only info we were given on it was one email, which I have already queried due to not being paid my bonus last month, but my team leader has not been able to get any answers for me yet
Expert:  Ben Jones replied 1 year ago.
Hi Keren, so it appears you are an agency worker, who is provided to the client employer. As an agency worker you still have the right to be paid the minimum wage which means that you should be paid an average of the minimum wage for the average hours you work with the employer. Therefore, if you are asked to work on specific days and not getting paid for them as normal, these hours will count towards your total hours worked and you can then calculate whether the pay you have received in total for all the hours is above the minimum wage level of £6.70 an hour.
When it comes to the bonus, your entitlement to it will depend on the terms of the bonus agreement you have in place. This could be something in writing or whatever has been agreed verbally. It is possible that you may not be paid a bonus even if this was due to the employer’s fault of not having the CCU up and running but this should be covered under the agreement and details of when it may not be paid should be detailed.
As far as the law stands, when it comes to workplace bonuses, there are two main types: contractual or discretionary. There can be an overlap where a contractual term gives the employer discretion over payment, or there can also be further sub-categories, for example performance-related bonuses or bonuses payable subject to other conditions. What is certain is that the legal issue of bonus eligibility is a rather complex matter and would mainly be subject to interpretation of individual circumstances and the wording of the clauses in question.
A common example is a bonus clause which is contractual but which gives the employer the discretion to decide whether it would be payable or not. This is also a situation which would cause most disputes between employee and employer. Whilst at first glance this may give the employer full discretion as to whether the bonus should be paid or not, this will not always be the case.
If the eligibility to a bonus is based on performance criteria then first of all if an employer is required to form an opinion of an employee's performance they must do so in good faith and be fair. Any other performance criteria would usually be determined based on qualitative data. Assuming the performance conditions have been met, an employer will rarely be able to refuse payment of the bonus as doing so would be acting in bad faith and considered unfair. So this is an example where the employer's discretion is removed once the relevant eligibility conditions have been satisfied.
It follows that even though a bonus clause may be described as being entirely at the employer's discretion, there are circumstances, mainly in performance-based eligibility, where this discretion is removed and the bonus would automatically become payable if the eligibility criteria have been met.
The issue here is that as an agency worker certain employment rights you have will be somewhat limited. The main one is there is no protection against unfair dismissal, which means your job could be terminated for more or less any reason and without having to provide a fair reason. So if they think that you are causing some trouble by challenging the bonus payments, they could terminate your employment and whilst you could try and claim the payments you should have received to date, it could leave you without a job. So consider what is more important – having the job and a questionable bonus policy, or challenging and possibly getting the payments you re due so far but at the risk of losing your job if the employer wants to go down that route.
I trust this has answered your query. I would be grateful if you could please take a second to leave a positive rating (selecting 3, 4 or 5 starts at the top of the page). If for any reason you are unhappy with my response or if you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you
Customer: replied 1 year ago.
This is a really informative answer and helps give me a good insight into what I should do. My main issue though, is less with the bonus and more with the fact that they have told me I must be available and wait by the computer, therefore meaning that for a half day on a Sunday and a full day on the Monday, I was unable to do anything else, yet I wasn't paid for my time. I questioned if they meant I had to be available even though not being paid, and was asked if I was refusing to be there all the time, so I am guessing the rest of your answer us quite relevant in that they will just find an excuse to terminate my contract if I quiz them too much. They do have a high turnover of staff so I am sure they will just replace me without any concerns and I am sure there will come a point that this will be the reason I leave the job anyway - right now, I am keen to hold on to it, but not if I am being treated unfairly. If I do lose it, I have other options, but I mainly want to understand the legal position on how they can make me be available when not paying me. I think your first paragraph answers most of that though but I think they may have a get out for that too - they contract me for 30 hours per week, but the contract states that they can average that out throughout the year, so some weeks they schedule me for 38 hours, others 26 hours. So although I was scheduled to work for 121 hours that week, I was only paid for 111, but does that mean they will just say it is an average?
Customer: replied 1 year ago.
Based on being scheduled for 126 hours, I was only paid for 111, which is £6.38 per hour, therefore below minimum wage. the bonus they did give me was £27 which would take it up to £6.62 per hour so still below minimum wage. Is there anything I can do about that?
Expert:  Ben Jones replied 1 year ago.
Well they could argue that. Also this is something which can be compared to ‘on call’ duty as there are many jobs where someone is required to be on call and not get paid for it. It is still a bit of a grey area but in general it is accepted that if you sure on call and on the employer’s premises then this time should be included in your working time and you should get paid for it. However, if it is done at home then generally it is not counted towards working time – so when workers are on-call but based at home or somewhere other than their workplace, on-call time only counts as working time from the time they are called out. Hope this clarifies things a bit more?
Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 1 year ago.
ok, that gives me a good enough understanding to be able to discuss with my team leader from a more informed point of view at least. Thanks for your time.
Expert:  Ben Jones replied 1 year ago.
You are welcome, all the best

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