No written contract....Unreason
able working hours and what to do?
I believe my DH works unreasonable long hours. He has worked for the same employer for years but has no written contract. He is a valuable member of his company and works hard and is committed and motivated. His job involves the office staff booking him daily appointments to visit the customer to fix or service a machine. The customer can be anywhere in the UK and he has a company van to use. This means travelling to the customer on a daily basis, which means he can be in the south of the UK one day and then the following day be up north. He doesn't have a typical week but drives on average 1000 miles a week. This means leaving home at 6am, driving for 2 hours, arriving at customer location, doing a full day of 8 hours work then driving home arriving 8pm ish then repeat the next day. Except sometimes that 2 hours driving is 4hours if further away (and therefore 8hours driving in total that day!)on top of his 8hours of work when there. Occasionally,like yesterday, he was only an hour away but this is rare. He is paid an annual salary and does not get paid extra for any extra hours neither does he get to take TOIL. He probably works about 70 hours per week Mon to Friday. But is his driving hours considered working hours? If it is then what is the best way for him to approach his company to change things? He feels working 4 days a week would be more representative of FT hours but would expect the same pay. With no written contract he has nothing to refer to. He doesn't want to piss them off but at the same time recognises he is not getting any younger, has no time for exercise, and is just exhausted from constant driving without feeling like he is paid for it. Thanks for any advice and replies🚙
Sadly in employer-employee negotiations the employers will only ever off the minimum that they think they can get away with. Your DH has accepted this unreasonable practice for so long that the employers have no reason to improve his conditions.
He should use some annual leave to do some intensive job hunting and secure a job offer elsewhere. If the new job is actually a massive improvement he could just leave, or if he wishes he can go to the current boss, resignation letter in hand, and then there can be a real negotiation - during which he needs to demand a written contract that sets down acceptable working conditions.
travel to work in cases like this IS work. Soeak to a couole of good lawyers.
He probably does effectively have an employment contract (hw is required to do the work himself..always given work, always accepts etc) might just need to tactically get confirmation of the first..and may well be able to claim retrospectively for a whole heap of things..
Thanks for your replies. Sorry have been busy.
Hmmmm...? Contradicting info though which is what we seem to be getting from other people we have asked. I guess the only route is legal but that is costly and he doesn't want to go down that road. Unfortunately there isn't enough annual leave in the year to cover school holidays between us so no time to take off. (both of us get 5week minimum annual leave so 10weeks per year when school have 13 weeks!). Maybe we will win the lottery and then give up work!
If the other people you have asked have been saying that his travelling time does not count as working time they are wrong. For staff working in a fixed location travelling time to and from their normal place of work is not counted as working time. However, the European Court of Justice has ruled that the time taken for mobile workers such as your husband to travel to and from the customer counts as working time.
In general workers do not have to average more than 48 hours a week over a 17 week period unless they agree to it. As your husband is clearly working more than this he should have signed an opt-out with his employer. If he has signed an opt-out he can cancel it at any time by giving 7 days' notice - he may have agreed a longer notice period with his employer but it cannot be more than 3 months.
Your husband is also entitled to 11 consecutive hours rest in any 24 hour period. So if he gets home more than 13 hours after leaving home he is entitled to start late the following day.
You haven't said how much your husband is being paid but there is also the question as to whether the long hours mean he is below the national minimum wage.
If his employer dismisses him for insisting on his rights under the Working Time Regulations or the National Minimum Wage that is an unfair dismissal. If they reduce his pay for insisting on his rights under Working Time Regulations that could constitute constructive dismissal.
If your husband's wages are below the National Minimum Wage he can ask his employer to make up the arrears of pay required to take him to NMW. If they refuse he can refer the matter to HMRC who can fine the employer and take them to court on his behalf to force them to pay.
Before going down the legal route your husband should talk to his employer and, if necessary, raise a grievance. It may be that they haven't thought about how much driving he is doing or that they haven't realised that his travelling time counts as working time.
Have you phoned ACAS for advice?
Is the employer in danger of breaching the national minimum wage with the additional hours?
Gosh thank you for your advice.
I haven't called ACAS as I wanted to gather advice from here first, as I read some dry knowledgeable advice on here😀
I suspect he is below NMW if his driving time is considered working, but it's more about the number of hours he works and my concern with his lack of sleep! It's not unusual for him to fly to Ireland to work for a day then be expected to work the following day in the UK....So up stupid o'clock to get to airport to then drive from airport to place of work, return journey getting home midnight ish then up at 5am to arrive in a city for a 9am start. I worry about him driving and being tired. He is sensible and will often pull over for a power nap but this makes him late.
I feel better knowing travelling is considered working time and I think the next step is for him to speak with his boss...But getting him to do this will be the tricky bit! He's so bloody busy with travelling he doesn't get a chance to speak with his boss much! Bit of a vicious circle but one he needs to break.
Thank you so much
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