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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 12308
Experience:  Qualified Employment Solicitor
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I have a question in regards XXXXX XXXXX working time directive.

Customer Question

I have a question in regards XXXXX XXXXX working time directive. I am in dispute with my ex employer over my working time regulations. I worked as a school nurse at a boarding school from Sept 2nd 2013 up until 10th March 2014. I received a letter from the school stating they are classes as a special case as the school nurse role involves continuity of medical reception, treatment and care. Accordingly the reference period for calculating average working time is extended to 26 weeks. The also state the period of statutory annual leave under reg 13 (4/52 weeks pro rata) is excluded from the relevant calculation of weekly average as 'excluded days'. The formula they have used to calculate my working time is :-
B - Hours worked in N of days immediately after 17 week period equivalent to excluded days = PRO RATA STATUTORY a/l (17/52 X 4 ) = 1.3 weeks
1 x week 18 +0.3 x week 19 (0.3 week x 45 hr) = 13.5
C - N of weeks in orginal reference period = 17
(A+B)/C = 625 +13.5/17 weeks = 37.56

My calculation is I worked 625 hours in 17 weeks I had 4 week holiday in this time - so I moved on and added the next 4 weeks when I returned from holiday = 849 hours = 49 hours.

Now they say they are classed as a special case so the reference period should be over 26 weeks. The hours I worked over a 26 week period is 973 - but in this time I had 6 weeks holiday - so my working hours average is over 20 weeks = 48.65.

The school work my average to be 41.38

If I go to 28 weeks I still had 6 weeks holiday - making my reference period 22 weeks - my average works out at 49.45.

The school average my working time to be 38.43

Can you explain there calculation for me? This is important as it looks like we are heading for a tribunal.
Submitted: 4 years ago.
Category: Employment Law
Expert:  Ben Jones replied 4 years ago.
Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. can you tell me if you had a contract of employment please
Customer: replied 4 years ago.

I have a letter of engagement but I was never given a contract


Expert:  Ben Jones replied 4 years ago.
Ok thank you leave it with me I need to look up a few things and then get my advice ready.I will post back on here when done there is no need to wait and you will receive an email when I have responded.
Customer: replied 4 years ago.

Hi Ben, Sorry for got to say I will be targeting Automatically Unfair Dismissal in regards XXXXX XXXXX European Working Time Regs. Hence the need for being spot on with my calculations. There are other issues - which I will need help with later. Thanks.

Expert:  Ben Jones replied 4 years ago.
Because there is no specific formula used in calculating these hours I will have to do some digging around to see what, if any. formulas have been used in the past, for example in case law so it may take me longer to find these out. In the meantime can you please confirm whether you were dismissed by the employer and if so on what grounds?

If you have other issues to discuss then please post these as a separate question because due to the complexity of this issue they will have to be deal with separately, thanks
Customer: replied 4 years ago.

Thank you Ben. I worked on a Probationary contract from Sept 2013 until March 12th 2014. The boarding school bursar dismissed me over the phone - they paid me 1 month in lieu. The reason given by the senior nurse for not giving me a substantive contract was she said there had been issues - I asked her if there had been a problem with either poor performance or of a disciplinary nature - she clearly stated the only issue was I had complained about the off duty rota ( this is the working time rota). There has never been any mention of any issues through out my probationary period and there was never any performance meeting during the probationary time. When I was given the job I was told by the headmaster I was on the same terms and conditions as the other nurses - but I noticed I worked more hours than the established nurses this is why I pointed out the disparity to the senior nurse - I also worked more weekends etc than the established nurses. Many of my shifts were extended shifts I was regular given 22/39 and 42 hour continuous shifts to work - I did on call from the medical centre on site at the school - I was not allowed to leave the school during my on call period. I took out a grievance - we had a meeting - prior to my dismissal - the senior nurse investigated herself - I appealed - I have a meeting with the headmaster and their solicitor on the 2 nd May - I am more than a bit apprehensive as this is a large organisation. I have been humiliated by the senior nurse and the bursar and if there is such a thing as cooperate bullying then I have been a victim of that too.

Expert:  Ben Jones replied 4 years ago.
ok tanks and what are you actually going to be claiming for? When you complained about the hours was it just the fact that they were different to the others' or were you aware that you were likely working above the 48 hour week and that was the reason for your complaint?