Tuesday Q&As

29.11.22

An interesting selection this week.

• Can you be made to do on-call work at weekends

• Instructed to do ‘voluntary’ overtime

• Working ‘on call’ is not in my contract - do I have to do it?

• Term time pay differential. Is this correct?

• Should you be paid if you work through an unpaid break?

• Apprentice pay or normal pay. Does it matter?

• Should employer agree to a shift change to reduce stress?

• Agency worker o a zero hour contract

• Should employer pay staff who are sent home with Covid although they are asymptomatic?

• Confusion over paid/unpaid breaks

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Can you be made to do on-call at weekends

Q. I work as a support worker 30 hours per week (Mon-Thurs) . I have always done on call once a week from 5pm till 9am, we don't get paid for this, we have TOIL if we spend more than an hour resolving a situation. 

Weekend on call was always opt in, however, we have now been told from Jan 23, we must all now do weekend on call 1 in 5, this is from Friday 5pm till Monday 9am. They say they will pay £35 per day which will then be taxed. I have checked my contract, it says evening/weekend will not be paid only toil will be given, it does not use the term on call . 

We have as a team sent the area manager an email suggesting time off instead of payment as those on benefits do not stand to gain. The manager has not responded to our email and has told our team leader to just put us on the rota for January 23 ( which she has done). I just do not want to commit to this - do I have to?

A. I’m assuming you have more than 2 years’ service, because if you don’t, you either comply or you could be dismissed without redress to a tribunal.

Contractually you are not obliged to be on call at weekends. If you have been ‘on-call’ during weekdays, notwithstanding it does not mention it in your contract, it is now probably custom and practice and you are expected to do it. But, to ask you to do weekends too is a significant change to your terms of employment and will need your agreement, as you previously only opted in to working at weekends - it was your choice. Furthermore, if your contract states that you should only receive TOIL at weekends, then you have it in black and white, you can insist on TOIL instead of pay.

Your company has the option of dismissing you and immediately rehiring you on the new terms including being on-call at weekends and a payment for it rather than TOIL, if you dig your heels in, but then there is the possibility of claiming unfair dismissal. The Company would need to show the change was reasonable under all the circumstances.

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Instructed to do ‘voluntary’ overtime

Q. I am not normally required to do overtime and my contract states this, but whenever any overtime comes up in our small 4 man team our manager states it is voluntary BUT must be done by one of us, this puts peer pressure on one of us to crumble and do the overtime so not to upset any of the other team, but we are now getting at each other as some of the team including myself have other responsibilities and simply do not want to do the extra and we are made to look uncooperative. Do we have any rights to refuse overtime as it is not contracted?