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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 70778
Experience:  Qualified Employment Solicitor
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I have got contract 48 hours excluding breaks---I worked 12

Customer Question

I have got contract 48 hours excluding breaks---I worked 12 hours in Residential Care Home and I got payment for 12 hours....last Monday 12.10.2020 0n the staff meeting Home Manager told all staff that payment is 11 hours -break is not pay --contract is not changed----I dont know is it right?
JA: Have you discussed this with a manager or HR? Or with a lawyer?
Customer: Not yet,but can employer do like that?
JA: What is your employment status? Are you an employee, freelancer, consultant or contractor? Do you belong to a union?
Customer: I am employee-Care Assistant-I dont belong to a union.
JA: Anything else you want the Lawyer to know before I connect you?
Customer: Yes of course,please
Submitted: 6 days ago.
Category: Employment Law
Expert:  Ben Jones replied 5 days ago.

Hello, I’m Ben. It’s my pleasure to assist you today. I may also ask for some preliminary information to help me determine the legal position.

Expert:  Ben Jones replied 5 days ago.

How long have you worked there for? Please note this is not always an instant service so I may not be able to reply immediately. Rest assured that I am dealing with your query and will get back to you the same day. Thanks

Expert:  Ben Jones replied 5 days ago.

Hello, I was wondering if you have had a chance to consider my query above please? I will need your response before I provide an accurate answer to your situation. Thank you and I look forward to hearing from you.

Expert:  Ben Jones replied 3 days ago.

Without the requested information, I can only provide you with the following general response, which will hopefully still answer your query. First of all, I am sorry to hear about the situation you have found yourself in.

If you have a contract for 48 hours work and that specifically excludes breaks, you can expect to work 48 hours a week and be paid for that amount of hours. Any breaks should be taken in addition to your working hours and it may mean that you end up being at work an extra hour to allow you to still work the contracted hours whilst you take breaks. For example, you work 4 days of 12 hours, which gives you 48 hours a week. If the contract specifically states that breaks are excluded then you may have to actually work 12 hours and have an hour break, meaning you are in work for 13 hours whilst still getting paid for 12.

If the employer is trying to say that you are in work for 12 hours and you use an hour break during that time, meaning you only work 11 hours and get paid for 11 only, then that should only happen if it specifically states in your contract that your breaks are unpaid and that they do not make up part of the 48 hours of work. If that is not the case, you are losing 4 hours a week by taking an hour unpaid break from the total you work, which means you are not working and getting paid for 48 hours.

If that happens, The employer’s actions will most likely amount to an unlawful deduction of wages, which is dealt with under the Employment Rights Act 1996.

Deductions of wages occur when an employer either makes actual deductions from an employee’s pay, or they stop their pay altogether. Under law, an employer can only do these in the following circumstances:

- If it is legally allowed (e.g. to deduct tax)

- If it is to recover an earlier overpayment of wages made by the employer (no prior consent is needed, but at the same time they should discuss how this may affect the employee, considering any outgoings they have to meet)

- If the contract specifically allows for the deductions to be made

- If the employee has given their explicit written consent, such as in a separate written agreement

If none of the above exemptions apply, the deductions will most likely be treated as being unlawful. To take the matter further, the employer should be contacted in writing, advised that their actions are treated as unlawful deduction from wages and/or breach of contract and request that they repay the amount in question within 7 days. State that if they fail to do so, legal proceedings could follow to recover what has been unlawfully deducted.

If the employer does not return the money as requested, the following options are available to take things further:

1. Employment Tribunal - the time limit to claim is only 3 months from the date the last of the deductions were made. Before making the claim, ACAS must be engaged to negotiate with the employer and try to resolve this without the need for legal action. The next steps to initiate this procedure are to contact them, either online by filling in the following form (https://tell.acas.org.uk/find-a-solution-to-your-employment-dispute), or by phone on 0300(###) ###-####

2. County Court – this is an alternative way to claim and the advantage is that the time limit is a much longer 6 years. It is therefore a useful alternative if the 3-month deadline for the Employment Tribunal has been missed. Also, there is no need to negotiate before starting a claim and the claim can also be made online by going to: https://www.gov.uk/make-money-claim.

Ideally, by warning the employer that their actions are unlawful and that legal action is considered, they will be prompted to try and resolve this and return the money with the need to take things further.

Expert:  Ben Jones replied 3 days ago.

Hopefully, I have answered your query in a way that is simple and easy to understand. If anything remains unclear, I will be more than happy to clarify it for you. In the meantime, thank you once again for using our services.