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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 77858
Experience:  Qualified Solicitor
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I have worked for my employer for nearly 6 years now, the

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Hi, I have worked for my employer for nearly 6 years now, the job has always been "job and knock" when the work is complete, we have always been paid 48 hours per week at minimum wage even though we work much less. (69 hours for me as I had 2 jobs there), But we noticed at the begining of April when the minimum wage went up that our takehome didn't, it actually went down.Our payslips have changed and they no longer state how many hours that we are getting paid for but just have a weekly total (the same as before when the minimum wage was £8.91), so in theory our hours of pay have been reduced. I asked the question to my employer after 3 weeks who stated that I only worked about 40 hours so my hourly wage was £15.41 way above the minimum. I was expecting to be about £20 a week better off with the 0.59 minimum wage increase but I'm actually about £5 a week worse than before as tax and NI have gone up.We had no notice to the change and this change doesn't seem to be for everyone, just those who work hard and fast without break for an early finish.So, can my employer reduce our hours without informing us that he is going to do this? we are checking our contracts but I think that it only says "work no more than 48 hours", but isn't the fact that I have a payslip for every week for nearly 6 years stating how many hours I'm being paid for and at the minimum wage at that time show what the policy has been?
Hello, I’m Ben, a solicitor, and it’s my pleasure to assist you. I may ask for some preliminary information to help me determine the legal position.

I understand you are concerned about being paid less than the minimum wage by your employer. Please upload a copy of your contract on here

Customer: replied 14 days ago.
I'm not being paid less than minimum wage in reality as my pay divided my my actual hours worked are much higher than Minimum wage, but he has in effect reduced how many hours he is paying me for.

OK I understand and thank you for clarifying this. Are you able to upload  a copy of your contract on here at all please?

Customer: replied 14 days ago.
I can't find a copy of my contract at the moment, I have seen the contracts of my work mates, but it doesn't state hour many hours that we will be paid for, it says "work no more than 48 hours", but every payslip up until March this year said 48 x then the minimum wage at that time, then new tax year came and the hours dissappeared and now its just a total, same as last tax year when the minimum wage was £8.91.

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 full reply on here; usually the same day. The system will notify you when this happens. Many thanks.

Many thanks for your patience, it is appreciated. I am now pleased to be able to provide further assistance with your query. First of all, I am sorry to hear about the issues brought up by this. It must be a frustrating situation to be going through.

There is a principle in law known as ‘custom and practice’, under which certain terms may become implied into an employment contract. This makes them contractually binding even if they are not written down anywhere. This area of law is rather complex and it is usually only down to the courts to establish with certainty if something had become such an implied term. Nevertheless, it does not prevent employees from directly raising this argument with their employers in any negotiations and trying to pursue it further with them.

From a legal perspective, to become an implied term a practice must be "reasonable, notorious and certain". In simpler terms this means it must be well established over a period of time, known to employees and clear and unambiguous. So it would need to have been clearly communicated to affected staff so that they have a degree of expectation for it and then it must have been consistently applied for a substantial period of time. Therefore, something that is uncertain, not widely communicated or applied consistently or has just been around for a few months is unlikely to qualify.

Case law has suggested that the following are important factors when considering whether a term has become implied into a contract:

- On how many occasions, and over how long a period, the terms in question have been applied - the more times they have been applied and the longer the period over which this has occurred, the stronger the argument they had become implied into the contract

- Whether the terms are always the same - large differences will make the argument they had become implied weaker. Again, consistency is key

- The extent to which the terms are publicised generally to the affected staff - there must be widespread knowledge and understanding amongst the affected workers that such terms were being applied

Whilst the argument of custom and practice can be raised with the employer in negotiations, they could of course refuse to accept it and if that is the case it can only realistically be challenged by taking this to an Employment Tribunal for formal resolution. Before that option is pursued, it may also be worth raising a formal grievance to give the employer one last chance to resolve this internally.

So for now you can argue that the way you have been paid over these years has created a contractual precedent through custom and practice and pursue it with the employer that way.

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 14 days ago.
Thank you for all of that information, another question is, should he of given us notice of what he was going to do? its wasn't until the 3rd week of payments and waiting for a payslip so we could see how our pay was less (as Tax & NI went up), we are paid weekly. I have always been paid for 69 hours even though I realistically only work about 40 (which is his arguement) but now I'm being paid for about 64 hours.

Hello again and thank you for your further queries, which I will be more than happy to answer. They should have done so, yes, especially as the changes apply to a critical part of your employment – the pay you receive. After all, the main, or sole, reason you work there is to get paid and that is a fundamental part of your employment relationship with them

I trust that everything has now been dealt with to your satisfaction and your original question has been resolved. If you have any further queries about it, please do not hesitate to get back to me on here. In the meantime, I wish you all the best.

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