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Ben Jones
Ben Jones, UK Lawyer
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Are you able to comment on Scottish employment law

Resolved Question:

Are you able to comment on Scottish employment law?  How legal is this proposed amendment?  And what should my cousin be challenging back?  I think he needs to go to a lawyer.  What do you think?

Proposed Variation to Terms and Condition of Employment
Further to your recent discussions with xx, I outline below the proposed amendment to your terms and conditions of employment with the Company.
As you are aware, the reasons for this proposed change are as follows:
Your current terms and conditions state that your hours of work are 37.5 hours per week, 9:00 – 17:30, Monday to Friday with one hour for lunch and that there may be times when you are required to work in excess of this to meet business requirements. In practice you do not however work these hours due to the varying demands for technical inspection work from month to month. With regard to the payment of overtime, your terms and conditions confirm that you have no contractual right to overtime but that any agreed overtime worked will be paid at an hourly rate of £20.00 (or as detailed to you by your line manager). Overtime has been paid to you where you have worked more than 7.5 hours in a day.
We will continue to pay you for 37.5 hours per week, however overtime will only be paid once you have worked 37.5 hours in any working week. This will be monitored by the submission of timesheets
It is proposed that this change will take effect from 1 May 2015. I attach an amendment to your terms and conditions of employment to these effects. If you have any questions about these revised terms please let xx and I know.
If you are in agreement with the proposed changes please sign and return one copy of this letter and return to me by 17 April 2015.

Changes to contract articulated as follows:

Hours of Work: You will be required to work 37.5 hours per week, Monday - Sunday. There may be times when you are required to work in excess of this to meet business requirements depending on client demands.
Overtime: You have no contractual right to overtime. However, any agreed overtime worked will be paid at an hourly rate of £20.00 (or as detailed to you by your line manager). Overtime will only be considered for payment when you have worked over 37.5 hours in a working week.
Your other terms and conditions of employment remain unchanged.
I have read and I accept the revised terms and conditions of employment

Submitted: 2 years ago.
Category: 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. How long has he worked there for?
Customer:

Not that long, he is less than a year. Previously in the army. So doesn't have any redundancy rights, etc. He is on call, so one day he can be sitting in the house for 7 hours and gets paid for that, and the next he might be working 10 hours, 3 of which are classed as overtime. However, he has been advised that the 3 hours overtime will not be overtime if he didn't work the day before, i.e. although on call for 7 hours, the 3 hours will be banked against the 7 hours, thus won't be overtime. Does that make sense. My view is that if you are on call you are effectively working. Also they have changed his working week. Just feels wrong. Do you need to see his original contract?

Customer:

He has just e-mailed me his original contract. I have attached so you can review and refer to the amendment proposal letter to establish whether legally they can change the hours of work and overtime element.

Attachment: 2015-04-10_084618_original_contract.pdf

Full Size Image

Customer:

His contract also states that his work location is his home address, however, he actually stays in a B&B which costs £30 per night which is near to the office. He only claims mileage on a Monday morning from his home to location and return on a Friday. Again, I don't think that is right. If he is funding his accommodation to be nearer to the office, then he should be claiming return every day from home address?

Ben Jones : Hello, sorry I was offline by the time you had replied. In terms of the employer's rights to change his contract of employment that can be done rather easily in this situation because he does not have the required length of service to challenge that. What the employer has to do is simply issue him with notice of termination as per his existing terms, terminate his current contract of employment, then issue him with the new contract incorporating the changes. This is due to him not having at least 2 years' service, which means that he is not protected against unfair dismissal. What that means in practice is that the employer can terminate his current contract at any time and more or less for any reason as long as they have given him the contractual notice period due on termination. So if the employer wants to make changes to his current contract they can.The next issue is once these changes have been introduced, do they meet general legal requirements. When it comes to overtime there is no legal eight to be paid for overtime worked unless the employee's contract allows it or it is paid at the employer's discretion. So it could be that he is asked to work overtime on top of his contracted hours but he cannot legally expect to be paid for that unless his contract allows it. If the contract does allow it, then it could be based on whatever conditions the employer wants and in this case they have a requirement that if he is on call that time will not count towards working time for the entitlement of overtime payments. It may seem wrong but it is not illegal and the employer can have that condition if they want to pay him for overtime. As to claiming mileage he cannot claim for journeys he has not actually made. He has decided that he wants to stay closer to his work and that is not a condition of his contact. As such he would bear the costs for that. But he cannot claim mileage for travel that has not been undtaken. If he does not travel the actual distance from home to work every day he cannot claim that, it would be fraud. He may be able to get some tax relief on the costs for accommodation but that is a tax matter, not an employment law one so you would need to seek separate advice on that.Hope this clarifies your position, if you could please let me know that would be appreciated. Thank you
Ben Jones :

Hello, I see you have accessed and read my answer to your query. 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? I just need to know whether you need further help or if I can close the question? Thank you

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