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Employment Law/Rights etc.

KC Cantiaci

pfm Member
Just looking for some advice for my missus. She works for one of the big 4 supermarkets and they recently went through a re-structure whereby they removed all the different layers of supervisory roles thereby cutting jobs and created a management level whereby these 'managers' are salaried. Their new contracts are for 43 hours and their salaries were calculated as whatever their previous hourly rate was x 43 hours + 3%. It was sold as a promotion and more responsibility etc etc.. They had to apply and go through a series of tests to get one of these positions.

I was curious as to how they came to this salary figure as it's less than what they'd earn doing 39 hours + 4 hours at overtime rate (time and a half). So in reality, this company managed to reduce its staff, give the remaining ones a pay cut and convince them they got a promotion?? But what is making this worse is they are now working even more hours.....way more. This is in part to do with the cutting back of hourly paid staff so the work is being filled in by these 'managers'. The senior bosses at this particular store encourage their subordinates to work longer and quote examples of those who are doing these hours. I divided her salary by the hours she works some weeks and it's bordering the current minimum wage at flat rate and will be way under the new £7.20 rate that's due to kick in next April. It works out to be less than what the workers on the shop floor earn that she's supposed to be managing??

So my question is.....is it legal to pay an employee a salary when calculated against the actual hours worked means they are under the minimum hourly rate?

Other issues are no proper breaks during the day, or working doing stuff like paperwork during them. Staff not getting the legal 11 hours rest time between shifts (she brought his up with personnel and they said they had an agreement with the union that meant they didn't have to ensure there was 11 hours between shifts). So when she was finishing the late shift (10.30pm), it was acceptable to start the next day at 7am?? She desperately wants to leave but needs to get a mortgage sorted first so is hanging on so as to not endanger that......
 
Answer : no, it's not legal to earn less than min wage. It does have to be an average though, iirc. So she needs to record her hours over several weeks. Possibly 13 wks, this is the figure for the wworking time directive. The rest of the contract is legal, some of the other stuff is against the wtd. I think that an individual can sign out of the ltd but a union can't do this for you. If she has less than 2 yrs and rocks the boat then she won't stay long. Welcome to Cameron s Britain. It's what we voted for. Hope we like it.
 
As Steve alludes to, it's probably better for her to keep her head down and get on with it. Hopefully once she gets her mortgage, or another job offer she can move on to an employer who does give a sh1t, which I doubt will be another supermarket.

As for blaming Cameron, I think all governments have been woefully inadequate in creating an equitable and reasonable environment for both customers and employees.
 
I find the part about less than 11 hours rest between shifts quite disturbing. There is lots of info on HSE website about fatigue risk. Contracting for 43 hrs a week is also close to unfair. EU MAX is 48 hours, so you would expect contractual hours to significantly under this. Breaks are also statutory entitlement.

You mention a union - I would recomend she speaks to the rep and gets together with her colleagues. Doing nothing will give management the impression that all is well and everyone is happy. A formal letter, sent from a group of staff, emphasising safety risks and health and wellbeing of employees, would be a good place to start. It should be formal, polite and unemotional, seeking a meeting to discuss an agreeable way forward.
 
She's completed 2 years....just. I have asked if she can get hold of her clocking in and out times to see what she's actually doing officially. What this won't show is her clocking out for lunch but working during it.....but I hope the clocking in and out itself shows a lack of hour/half hour lunches or whatever it is and the irregularity of it. When she was hourly paid, the deputy manager used to ask her to clock out but carry on working??

As for this being Cameron's fault...... more like a shite company abusing its employees and an ineffective union. The laws exist to protect people but not much good if no ones going to hold these companies to account and/or the union and employer are colluding to circumvent the laws designed to protect employees. If anything, I partly lay the current situation down at the open border policy encouraged by Labour and the creation of tax credits. The flood of EU migrants to the UK from 2004 onwards as well as tax credit subsidised wages has meant that employees are two a penny and dispensable. They'll always find someone else willing to do the work so people are frightened for their jobs and those on tax credits won't risk losing them. The missus is in the unfortunate position of being in the middle of demanding senior managers who further up the chain are demanding the cutting hours as a short term fix to improve profit reports for shareholders, and staff who often report sick whilst others won't work longer to help cover because it would mean exceeding their 16 hours which may effect their tax credits. So I'd blame Cameron for not fixing stuff since he's been in govt but I'd argue we shouldn't have been put here in the first place.
 
Name and shame them, I worked for Sainsbury's for six months and they treated staff badly. A friend's wife works for Tesco in middle management. She suffered a fairly significant injury albeit out of work time and they put huge pressure on her to return to work when she was in agony and dosed up with pain killers. If you add the appalling way they treat their supply chain, the supermarkets are ruthless.
 
The union is only as effective as its membership. If your wife is a lone voice among people who are prepared to be sh*fted and do nothing about it, the best option is to leave. If she can find even a few like minded individuals who want to change things for the better, then it is possible.

Clocking out and then continuing to work is a joke - imo staff should flatly refuse to do this; there is no sensible reason an employer could put forward to defend this.
 
I find the part about less than 11 hours rest between shifts quite disturbing. There is lots of info on HSE website about fatigue risk. Contracting for 43 hrs a week is also close to unfair. EU MAX is 48 hours, so you would expect contractual hours to significantly under this. Breaks are also statutory entitlement.

You mention a union - I would recomend she speaks to the rep and gets together with her colleagues. Doing nothing will give management the impression that all is well and everyone is happy. A formal letter, sent from a group of staff, emphasising safety risks and health and wellbeing of employees, would be a good place to start. It should be formal, polite and unemotional, seeking a meeting to discuss an agreeable way forward.

I keep telling her to get together with colleagues to stand together but they never seem to get a moment to have a chat let alone anything else. The union rep is useless apparently and from what the missus says, it's not clear this person even knows what it entails to be a rep. They've lost 4/5 out of 10 managers since the restructure and it's happening across the company. Considering the restructure meant there was a culling of supervisory jobs and there were redundancies, there's a sudden glut of manager vacancies as people have left/stood down due to not being able to cope. At this store, one of the newly promoted managers is typically used as a model cos this daft sod is doing 14 hour days and the senior managers are loving it and keep using this person as an example of what some are doing to make their department work. But I suspect this will only carry on for so long before this person burns herself out.

These stores are setup around their weekly turnover apparently and banded accordingly. The problem where we live is its a seasonal place with lots of caravans parks so in the summertime, the local population virtually doubles but the senior managers can't get their heads around this. They could almost double their weekly turnover in the holidays and weekends. But the dumbasses told their subordinate managers to cut hours back onwards from the week beginning the school holidays?? On top of this, the missus was told that her 3 departments are operating at a turnover level expected from a store 2.5 times the size.....but won't give her the staff/support of such a level. It's madness!
 
She's completed 2 years....just. I have asked if she can get hold of her clocking in and out times to see what she's actually doing officially. What this won't show is her clocking out for lunch but working during it.
In this case your wife needs to learn to manage her manager. She's on her break, asked to do XYZ: "Yes, thank you for that. I'm on my break right now but as soon as I've finished it, which will be at (checks watch) 20 minutes' time, I'll get right onto it. Now then, you'll have to excuse me, this sandwich needs dealing with."
If there's any blahblah, then the answer is "yes, I understand that. I'm actually having my lunch break, and I'll deal with that as soon as it's finished. Now is that all right?" This last of course is a statement, not a question, and the delivery makes this clear.

You can also resolve this by leaving site at lunchtime. I have done this in the past to make a point, but then I am a bloody-minded Yorkshire ba*d who doesn't mind who he upsets.

When she was hourly paid, the deputy manager used to ask her to clock out but carry on working??
"no, I won't be doing that. That would be illegal, and I wouldn't be covered by the work insurance if I did any work after clocking out."
 
She's completed 2 years....just. I have asked if she can get hold of her clocking in and out times to see what she's actually doing officially. What this won't show is her clocking out for lunch but working during it.....but I hope the clocking in and out itself shows a lack of hour/half hour lunches or whatever it is and the irregularity of it. When she was hourly paid, the deputy manager used to ask her to clock out but carry on working??

Surely asking an employee to clock out and then work through a break has to be illegal and easily challenged in an employment tribunal? I'd refuse point blank to do so. I'd suggest covertly recording any request to do so on her phone for future use.
 
Sound advice from stevec67. I would also speak with head office HR as the local manager looks like he/she doesn't understand the law and if taken to court/tribunal would cost the business a lot of money and/or repetitional damage. The last element is very serious in terms of insurance and a Supermarket isn't a risk free environment by any means.
 
The answer here that if she has agreed to changes then it de facto becomes legal.

I agree with comment from 73Chaz, "union is only as effective as membership", but I would go further....the union is not the officials, it IS the membership, it is the individual members acting collectively.

It's of no use blaming the union for being ineffective when members themselves refuse to do anything. If the problem is that others refuse to act; then blame them, not the union
 
Surely asking an employee to clock out and then work through a break has to be illegal and easily challenged in an employment tribunal? I'd refuse point blank to do so. I'd suggest covertly recording any request to do so on her phone for future use.

I agree completely.....and I told her not to do it. The trouble is, she was still under her two years and feared for her job. I told her I suspect this guy was a ladder climber and was trying to make the store look good on productivity figures by reporting a set turnover with less staff. It's another short term tactic that will fall down in the long run but will cause lots of anxiety and crap along the way. Seems that it worked as this deputy has been 'rewarded' with his own store and left for his new position 2 weeks ago. A new guy has turned up as his replacement and likely he'll be wanting to make his mark. Not sure where he'll go from here as they're allegedly down to the bare bones as it is.
 
The answer here that if she has agreed to changes then it de facto becomes legal.

I agree with comment from 73Chaz, "union is only as effective as membership", but I would go further....the union is not the officials, it IS the membership, it is the individual members acting collectively.

It's of no use blaming the union for being ineffective when members themselves refuse to do anything. If the problem is that others refuse to act; then blame them, not the union

I agree in part as it is down the employees to do something......but this isn't isolated to this store. The missus has been on training courses and interacted with colleagues from other stores and it's a similar picture. So even if the union rep at this store is crap, it can't be the same across the board surely? Surely the union must be able to see what's going on across the country?? And how can a union agree for a company to ignore the rest time between shifts law? Finishing at 10.30 and starting at 7 allows an 8.5 hour window in which the employee has to travel to and from home, have something to eat, wash and dress/undress and sleep??
 
I would like to see in writing where a union has agreed to 8.5 hours between shifts - this contravenes so many recognised good practices that I really struggle to believe that any union would accept this. I would ask the union rep and the manager to produce the writen agreement which allows this.

To be provocative, ask what would happen if an employee fell asleep when driving to work after one of these sub standard rest periods, and people died as a result? It may sound far fetched but it could happen and the HSE would be all over this and the associated fatigue risk .

This happened in the industry I work in; several people died after a driver fell asleep on the motorway, after working a 12 hour shift. And we have min 12 hour rest between shifts.
 
Agreed. If she asks for this, they know it'll be to stir up stuff. I'm inclined to get this mortgage sorted and then do as much as she can because it won't end well but I do believe this needs to come out into the open so someone's got to do it.
 
From the HSE website:

Under the Working Time Regulations 1998, regulation 10, a worker is entitled to a rest period of 11 consecutive hours rest in each 24 hour period during which he works for his employer.

However, there are a number of special circumstances in which the entitlement to rest periods does not apply, for example, where the activities involve a need for continuity of service or production or where there is a foreseeable surge of activity. Also, if a shift worker changes shift, it may not be possible for them to take their full rest entitlement before starting the new pattern of work. In such a case the entitlement to daily and weekly rest does not apply.

http://www.hse.gov.uk/contact/faqs/workingtime.htm
 
I agree in part as it is down the employees to do something......but this isn't isolated to this store. The missus has been on training courses and interacted with colleagues from other stores and it's a similar picture. So even if the union rep at this store is crap, it can't be the same across the board surely? Surely the union must be able to see what's going on across the country?? And how can a union agree for a company to ignore the rest time between shifts law? Finishing at 10.30 and starting at 7 allows an 8.5 hour window in which the employee has to travel to and from home, have something to eat, wash and dress/undress and sleep??

I'm sorry, but there is a fundamental misunderstanding here. The union will not agree to working conditions that are contrary to employment law. If individuals ignore advice to not agree to such conditions and agree to them anyway, the the union is powerless. If these conditions exist across the board, as you say, then surely there is a number of people prepared to stand up and be counted? I suggest that your partner has a quiet word with colleagues who are in the union to see who is prepared to take action. If there are sufficient numbers than she should contact her Local or Regional Association and they can then try to judge if there is sufficient support for action. But I repeat, the union can only act where it has visible support, without the support of it's members a union cannot act
 


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