Being unfairly denied overtime + being told I'm part-time despite working full-time hours for 15 months.

I've worked at my current employer for coming on 15 months now, it's my first job since finishing university so I'm obviously not very well versed in my employee rights. In those 15 months, I've been working a full 39 hours every week, picking up overtime whenever I've been asked to do it. The job is very seasonal, so most overtime is available this time of year.

However, today I've been given quite the blow, the rota covering who is working overtime and when doesn't include me at all. Of course, overtime isn't mandatory, but I feel it is unfair, and possibly not legal, that all other staff members are being offered it except for me.

My supervisor questioned it, and was told I "didn't meet the criteria" as I was "part-time staff". Both me and me supervisor were taken aback by this. There has never been a signed paper contract (not illegal in itself, but definitely dodgy), but both me and my supervisor thought I was full-time, especially as I replaced a full-time member of staff who left, and I've been working full-time hours for 15 months.

I don't know where I stand now. From reading gov.uk, even if I was a part time staff member, I shouldn't be treated differently to full time staff by law, so surely should be offered the opportunity same overtime?

Posted Jan 6, 2017, 11:58 AM UTC

165
Trapezophoron•

You need to ask them for your (written) "statement of employment particulars", which they should have given you within a few months of starting - if you don't have a written contract, you have to have one of these. This should then state your hours (39 hours would be considered full-time) and give you something a bit better to go off.

https://www.gov.uk/employment-contracts-and-conditions/written-statement-of-employment-particulars

4

My supervisor questioned it, and was told … I was "part-time staff".

You say you don't have a contract, so I'm not sure how you'd argue this in court, however zero-hours contracts are now predominant in retail work.

That means that neither the employer nor the employee has an obligation to give hours to the other - the hours are "flexible" and might, in theory, be negotiated on a week-to-week basis.

In practice, employers have more power to dictate terms than employees do, so employing all their staff on zero hours contracts better allows them to fuck you over.

If a shop has 3 employees working 40 hours a week then they are left short-staffed if an employee is ill - if they have 4 employees each working 30 hours a week, then they can ask the others to work a few extra hours to make up. Retail bosses don't like employees clocking more than 40 hours a week because overtime rates then kick in - better to have a bunch of zero-hours employees working a regular 30 hours a week, each glad to do a few extra hours.

Zero-hours contracts also allow bosses to punish employees arbitrarily - if you refuse to work overtime, call in sick, demand your agreed holiday or if he just takes offence at something you say, your boss can just reduce the number of hours he rotas you in for next week. Is it possible you inadvertently pissed someone off?

As you say you don't have a written contract, it may be that your implied contract makes you a full-time employee. I don't know much about this area of law - I think that's maybe a possibility, but I don't know. Good luck enforcing it, though. Your employer is going to say they took you on on a zero-hours contract, I bet.

You could speak to a solicitor who specialises in employment law - I've written previously, here and here, about finding and choosing a lawyer. I fear they may tell you that you're unikely to achieve any redress. Citizens' Advice and ACAS can also be good, I hear. I fear that your best resolution will be to get another job. You should write to your MP and tell him of your experiene, asking him to support stronger employee protection.

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1
raluth•

https://www.gov.uk/part-time-worker-rights

Part-time workers are protected from being treated less favourably than equivalent full-time workers just because they’re part time.

There is an exception about overtime rates not being applied until you've met the usual full-time hours, but it sounds like you are meeting those hours already. There is no single definition of "full time", however, and it is probably harder to discuss whether you are full or part time without a contract. You definitely sound full-time to me.

But... yeah, this sounds like you're being "treated less favourably" to me. You should ask for their reasons in writing if you want to argue it (reminding them that must respond within 21 days, citing that link)

1
shrewphysOP•

The only worry is have about raising this issue is that has the manager given himself a "get out clause" by throwing in this "oh, you're actually only part time by the way". If I raised that I should be entitled to the same overtime hours, the solution for him would be simple... cut my hours. Overtime hours are a luxury I could probably live without, but my basic hours aren't. And without all of them I'd struggle. I don't want to raise this issue and have my hours cut in half.

If he did take that course, could I argue against being labelled as part-time? When I got the job, all indications from the manager were that it was a full time job. No part time hours, and not fixed-term.

1