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Ben Jones
Ben Jones, UK Lawyer
Category: UK Law
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If an employee has a substantial difference in hours worked

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If an employee has a substantial difference in hours worked for the same salary (38Hrs/week as opposed to 48.5Hrs/week), is there any legal precedence that can be used in an argument to reduce the hours to the lower rate?

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. How long have they worked there for?

Customer:

I have worked for the company for ten years and the reduced rate employees have worked there for approximately 3-4 years.

Ben Jones :

So are you asking from the employer's point of view or the employees?

Customer:

They worked for a sister company and were "absorbed" into our company, the management tried to change their contract, and one of the engineers actually signed the new contract, but they argued against the new contract and won. They were then employed with their original hours but on our salary which is higher.

Customer:

employee

Ben Jones :

what is the reason for working less hours than contracted?

Customer:

Their original contract was for 38 Hrs, our contract is for 48.5 Hrs, when they joined our company they were told they had to work to our contract and were pressurised to accept this. One engineer signed a contract for 48.5 Hrs and the other two fought it. The management then employed all three on their original hours but with our salary based on 48.5 hours. Since then one of the engineers has been made redundant but the other two are still employed, we are all classed as engineers and are expected to work on all aspects of machinary provided by our company, however some engineers are "experts" in their class of machinary.

Customer:

Basically we are told by the management that we are all expected to work on all machinary that we produce, the parent company is from Germany but we are a UK company with our own Managing Director, we are in effect "equals" at work. Although some engineers have negotiated a higher rate of pay due to more skills i.e. PLC programming, but the contracted hours are still 48.5 Hrs.

Ben Jones :

You know if a law known as TUPE applied to theses employees when they transferred?

Customer:

No, I don't know, what is TUPE ?

Customer:

All the managment stated was that "they could do nothing to the increase in hours for the new employees legally" but no explanation was given as to why the salary was increased!

Ben Jones :

ok so are you basically upset that you are getting paid the same for working more hours?

Customer:

Yes

Customer:

Not just me another 10 engineers

Ben Jones :

OK this is essentially a matter of inequality of pay, where someone doing the same job is on a different rate. However, the law on equal pay is frequently misunderstood. Many workers believe that there is a right to equal pay across the workforce, especially for workers that perform the same or similar jobs.


 


However, the reality is that employers are free to pay their employees whatever they wish, as long as it is above the National Minimum Wage and in accordance with the employee's contract of employment. It is not generally unlawful to pay employees doing the same or similar jobs different rates. The only time this would be an issue is if the reasons for the difference in pay is discriminatory, most commonly due to a difference in gender.


 


Therefore, if there is evidence that the reason for the difference in pay is gender-related, the law of equal pay will be relevant and a potential claim would exist. However, if the reason is not discriminatory then there is unlikely to be a valid claim. Whilst the employer’s actions may impact on the employees’ morale and may seem unfair, they would not be illegal.


 


Even if there was evidence that the reasons may be gender-related, the employer could still try and rely on the genuine material factor defence to defend any equal pay claim. This would occur where the employer can show the difference in pay is due to:



  • Market forces and skills shortages

  • Red circling

  • Geographical differences

  • Different skills, qualifications and experience

  • Precedents left over from previous companies worked for


 

Customer:

There is no gender related discrimination as all the employees are male and the pay is above the minimum rate. What options are available to us? Overtime ban for example

Ben Jones :

If there is no discrimination then whilst unfortunate, it is not illegal to have different people on different rates and whilst you can propose certain measures, such as overtime ban, the employer would not be obliged to implement these

Customer:

So legally there is no precedent

Customer:

We have no legal argument against the difference?

Ben Jones :

I am afraid whilst it may appear unfair, it is not unlawful - equal pay rights only exist if the differences between pay are discriminatory, in the absence of that it is legal to have employees doing the same tasks on different pay

Customer:

OK thank you. You have confirmed what I suspected any way! The only way forward for my colleagues and I appears to be industrial action i.e. an overtime ban

Ben Jones :

You are most welcome and sorry it was not necessarily the answer you wanted to hear. Please take a second to leave a positive rating for the advice I have provided as that is an important part of our process. Thank you and all the best

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