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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 73475
Experience:  Qualified Solicitor
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My employer (a registered charity) has decided to have a

Customer Question

My employer (a registered charity) has decided to have a "volunteer day" in which they are asking all staff to volunteer for at least half a day. However, they are saying that attendance is an expectation and that it will effect our performance bonus. Is this legal? As it sounds like modern slavery to me, also we are not even being offered travel expenses or any other benefit towards it.
JA: Have you discussed this with a manager or HR? Or with a lawyer?
Customer: I have discussed it with my head of charity and she confirmed it would effect my bonus if I do not attend. I also have the emails regarding it. We do not have a HR department and I have not sought legal advice.
JA: What is your employment status? Are you an employee, freelancer, consultant or contractor? Do you belong to a union?
Customer: Am fulltime night staff, I am not part of a union unfortunately
JA: Is there anything else the Lawyer should know before I connect you? Rest assured that they'll be able to help you.
Customer: No I don't think so.
Submitted: 14 days ago.
Category: Law
Expert:  Ben Jones replied 14 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 14 days ago.

What reason, if any, has your employer provided for asking staff to do this? and how long have you worked there for?

Customer: replied 14 days ago.
Ok
Expert:  Ben Jones replied 14 days ago.

Thank you. What reason, if any, has your employer provided for asking staff to do this? and how long have you worked there for?

Customer: replied 14 days ago.
The estate department has fallen behind on work and they want us to help out on the estate. However, they also cut the estate staffing by 2 fulltime workers since the first lockdown. I have worked there for about 6 and a half years.
Expert:  Ben Jones replied 14 days ago.

OK I understand and thank you for providing this information. Please do not worry and leave it with me for now; I will get back to you with my answer as soon as I can which will be at some point today. The system will notify you when this happens. Please do not reply in the meantime as this may unnecessarily delay my response. Many thanks.

Customer: replied 14 days ago.
Many thanks, ***** ***** forward to your response.
Expert:  Ben Jones replied 13 days ago.

Many thanks for your patience, I am pleased to be able to continue assisting with your query now. Asking you to work a ‘volunteer day’ is basically a request to work unpaid overtime. The first thing you need to check is whether you contract of employment allows your employer to ask you to work any overtime or additional hours and whether it states anything about overtime pay.

If it says they can ask you to work extra hours and there is no mention of overtime pay, it is actually possible to do this because it would be allowed under the contract (by law you do not have the right to overtime pay, it is a contractual right only).

As far as the bonus is concerned, that would depend on how it is payable and if it is entirely at their discretion.

Workplace bonuses can, in their nature, overlap in the way they become payable, which can sometimes create some difficulties. For example, they could be contractual with discretionary eligibility, contractual with guaranteed eligibility or discretionary altogether. I will summarise the usual positions below:

1. Contractual bonus

This is the preferred situation as the bonus terms are clear and transparent as they are contained in the employee’s contract or associated bonus eligibility document. The employee’s participation in a bonus scheme is practically guaranteed, although it would not automatically mean they are also eligible for receiving payment under it. Whether that happens depends on the criteria set out in the associated terms. Most commonly, eligibility is linked to an individual performance and targets, or the company performance as a whole.

If the eligibility to a bonus is based on such performance criteria, it could be determined on subjective basis, objective basis or both. Subjective criteria would be where an employer is required to form an opinion of an employee's personal performance. If they do so they must do it in good faith and be fair. Objective criteria would usually be determined by qualitative data, such as targets, turnover, sales, etc. 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. It is also going to be a likely breach of the implied term of mutual trust and confidence, which exists in every employment relationship.

2. Non-contractual/Discretionary bonus

These are actually the more common types of bonuses. There is no automatic right to a bonus, allowing the employer flexibility in choosing if and when a bonus is payable and such decisions may be made entirely at the employer's discretion and on their own terms. The key aim is to avoid placing the employer under any obligation to implement a bonus scheme or make any bonus payments. A scheme where the employer has total discretion on whether to pay a bonus or not could be difficult to challenge. However, less stringent schemes where the employer may only have partial discretion or still form an opinion on eligibility or base it on performance could potentially be challenged under the fairness arguments mentioned above.

It follows that even though a bonus clause may be described as being 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 employer must have reasonable grounds for not paying that bonus and be able to show that it has acted in good faith.

Expert:  Ben Jones replied 13 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.

Customer: replied 13 days ago.
Thank you for your advice, I will read through it in detail and check the recent contract and if needed get back to you.
Expert:  Ben Jones replied 13 days ago.

You are most welcome. If you have any further questions about this then please do not hesitate to get back to me and I will be glad to help. All the best

Customer: replied 13 days ago.
I don't know if it makes a difference but I work in care (I am a waking night support worker). I am tempted to report want is going on to the CQC, as I have addressed my issue with the head of charity and the trust, but have not had my concerns addressed. The head of charity has now informed us that if we can't volunteer over the allotted weekend we can "volunteer" on any other date to achieve that point towards our performance bonus.
Expert:  Ben Jones replied 13 days ago.

I am not sure if the CQC would look into this as they may view it as an internal matter, rather than anything that affects the quality of service they provide.