Page 3 | Part time contract still working full time - anyone?

parttimewarrior · 2024-04-06T20:01:43+00:00

I'm at the beginning of what is going to be a legal battle with a law firm about this. I know I'm not the only person to have found themselves in this situation (and I won't be the last) - but I'm reaching out for my own sanity to hear other stories too. Here's mine. I returned to work full-time and it was too much. I asked to reduce my hours to a 4.5 day working week and the firm agreed. My salary and holiday entitlement were reduced to reflect the reduction in my contractual working hours. The thing is, my actual working hours didn't change. In fact, at some points I worked even more than when I was "full-time". The result: the firm took the benefit of the hours that I worked and didn't pay for them. It decided that I was not entitled to be paid for, or receive holiday pay based on, 35 hours work per week even when I worked at least 35 hours per week because my contract was for 4.5 days. Colleagues were entitled to be paid for and receive holiday pay based on the same 35 hours of work because their contract was for 5 days. Informal then formal grievance and appeal got nowhere. So now I've started a claim. Is this a problem that's as prevalent as I think it is? Has it happened to you or someone you know? It's just beyond wrong!

Propertylover · 09/04/2024 11:19

@LittleBearPadThank you I am aware lawyers keep time sheets which are effectively more detailed flexi sheets.
As I understand it neither impact your hourly rate for pay. If you work full time it will use contractual hours of 35 or 37.5 etc. not the actual hours you work.

Cristall · 09/04/2024 11:38

I used to be a teacher. The job was about 55 hours per week, which was too much for me. Those were not contracted hours - the job was salaried, it was 25 hours in the classroom plus whatever it took - which was roughly an additional 30 hours.

I dropped to 0.8 contract, which was 20 hours in the classroom plus 24 additional hours. That allowed me to work approximately a normal amount of hours per week (44 hours). That was the only way to get my workload down to a manageable level. It’s very common for teachers to do this because they can’t cope with the excessive hours.

I didn’t go around whinging “I’m working 44 hours so I should have a full time salary, because others are working 44 hours and getting paid full time”. Because those working full time were doing 55 hours. In fact what I did was, I quit teaching completely, and switched to a job where I got a full time salary for my 44 hours.

OP if you are contracted for 4.5 days then you should be working 4.5 days. It’s not your employer’s fault that you have chosen to work additional hours which you are not contracted for. The correct approach would be for you to stop working when your contracted hours run out and inform your employer that xyz won’t get done unless they pay you (or someone else) additional hours.

saltinecrackers · 09/04/2024 11:49

Propertylover · 08/04/2024 22:13

@saltinecrackers we will have to agree to disagree.

What I can say is payment for part time additional hours for salaried staff (including lawyers) is a policy routinely applied in my sector.

AS I stated earlier, it also is in my sector. But very clearly outlined in the contract.
Again, agree to disagree but you've also ignored my logic that, if OT was payable, that is what OP would be asking for. She wants the exact same as her 35 hour a week colleagues despite claiming to sometimes work 'more' than FT which implies than OT isn't payable in her job.

saltinecrackers · 09/04/2024 11:53

user09876543 · 09/04/2024 08:10

I am an employment lawyer. I have 27 years PQE and am an equity partner and head of department in a large, very well known firm.

I cannot see how the OP is making out her case. I mean there must be some way she is attacking it since she has other lawyers on board pursuing the claim for her but it simply isn't feasible as a legal argument as far as I can see.

Interestingly I was with a KC yesterday and asked him and he was also struggling to work out how this would be approached.

I'm very interested though.

Effectively, if this argument succeeded the OP would set a precedent which would be so far reaching that it would collapse businesses in all sectors across the country. That would then undoubtedly lead to a situation where companies were all scrambling to slash contractual holiday entitlement.

If a full time solicitor anywhere in the private sector is working 35 hours and only 35 hours then I'd be pretty surprised. In all likelihood, most are contracted to work core hours of 9-5 plus such other hours as are necessary to do the job. They probably then get around 5-6 weeks annual leave plus bank holidays. In reality this means most solicitors will be working closer to 50-60 and lots will be working far more than that. Many then don't even take the holidays they are entitled to.

Mr Parttimesolicitor works 3 days a week. The FTE entitlement is to 6 weeks leave and core hours of 35 plus such other hours as are necessary without additional remuneration. The pro rated entitlement is therefore to 3.6 weeks' leave.

Mr Parttimesolicitor says that over this three days he actually works 35 hours which is feasible. As a result he wants the full time holiday (and by extension of that argument, the full time salary) because the core hours are 35 per week. He is however conveniently ignoring the fact that his full time colleagues are working 60 hours not 35 hours because the job isn't an hourly paid job, its a salaried role where you work until the job is done. So Mr Parttimesolicitor wants to work 2/3 of the week but get all of the pay and all of the leave of a full time worker.

Effectively what Mr Parttimeworker wants is a job where he only works 9-5. That isn't his contracted role.

If the OP's argument succeeded on a contractual basis (in simple terms the more I work, the more holiday I get) then Miss Fulltimesolicitor who is contracted to work core FTE hours of 35 hours but actually is working 60% more than that would be able to use the principle to argue that she is entitled to 60% more leave. So suddenly Miss Fulltimesolicitor is "entitled to" 9.6 weeks' leave instead of 6 weeks' leave. Unsustainable when applied across a business.

It's then applied to all other benefits eg pension, salary etc

It can't succeed. You're asking the tribunal to imply a term that leave entitlement increases with hours worked in a salaried role. It doesn't. It is whatever the contract says it is.

The only way to think about attacking it is then to look at discrimination. Equal pay legislation can't help you. You can potentially claim on the basis of an inequity in benefits where someone is doing like work, work of equal value or WRE (unlikely in a law firm), but in order to succeed in the claim you have to show that the difference in the treatment is sex. It isn't, it's the contracted core hours.

So you're left with at best some sort of indirect discrimination claim along the lines of women are more likely to work part time and are therefore disproportionately disadvantaged by a policy to pay part timers less than full timers. But at this point I'm stumped since this only gets off the ground if they are not paid on a pro rated basis. So if full timer gets £100k/10 weeks leave and someone who works 50%FTE gets £30k/3 weeks leave then yes of course there is a claim but how is there a claim if its pro rated?

Genuinely intrigued. I'll be looking out for it being heard since it doesn't look like the OP is going to explain but if it even succeeds at first instance (because surely it would go to appeal - particularly with a law firm Respondent), it would create such a tidal wave through businesses up and down the country that there would undoubtedly be policy based intervention. You'd also be banging the nails in the coffin of part time working pretty much forever. No business would be able to afford it so there would be no benefit to allowing it.

Beautifully put!
This entire argument is also useless because there's a very simple way OP could get what she wants.
Go back full-time if she's doing those hours anyway!

If someone wants PT they should be pushing back on their hours, and not being paid for doing more.

Propertylover · 09/04/2024 12:07

@saltinecrackers

I am not sure we are actually using the same example. I agree part time employees should only be paid overtime on the same basis as full time staff. That is once they have worked and been paid additional hours up to full time hours or if they do overtime on a day a full timer doesn’t work for example Saturday and Sunday.

As per the NHS Staff Handbook extract below Overtime is only paid once an employee has worked and been paid for 37.5 hours.

Up to 37.5 if a part timer works more than their contracted hours they are paid additional hours not overtime.

NHS Staff Handbook
Overtime payments
3.1 For the purposes of this section 3, overtime is those hours worked in excess of 37.5 per week. All staff in pay bands 1 to 7 will be eligible for overtimepayments. There is a single harmonised rate of time-and–a-half for all overtime, with the exception of work on general public holidays, which will be paid at double time.
3.2 Overtime payments will be based on the hourly rate provided by basic pay plus any long-term recruitment and retention premia.
3.3 Part-time employees will receive payments for the additional hours at plain time rates until their hours exceed 37.5 hours in the week that the additional hours are worked

ParsonsPont · 09/04/2024 12:14

user09876543 · 07/04/2024 12:54

You’re also ignoring the fact that your colleagues don’t do a 35 hour week because it’s not that kind of job. In all likelihood closer to 50-60. Plus it would be exactly the same for a male colleague

Edited

This. This is what people often forget.

I work a four day week as a lawyer, and on my non working day I make it clear I’m not checking emails, etc, but I still work over 28 hours a week as that’s the nature of the job. However, overall, I work less than my colleagues.

And the pay reflects it. I can’t get a 6 figure salary as a part time employee without expecting to put the hours in.

saltinecrackers · 09/04/2024 12:15

Propertylover · 09/04/2024 12:07

@saltinecrackers

I am not sure we are actually using the same example. I agree part time employees should only be paid overtime on the same basis as full time staff. That is once they have worked and been paid additional hours up to full time hours or if they do overtime on a day a full timer doesn’t work for example Saturday and Sunday.

As per the NHS Staff Handbook extract below Overtime is only paid once an employee has worked and been paid for 37.5 hours.

Up to 37.5 if a part timer works more than their contracted hours they are paid additional hours not overtime.

NHS Staff Handbook
Overtime payments
3.1 For the purposes of this section 3, overtime is those hours worked in excess of 37.5 per week. All staff in pay bands 1 to 7 will be eligible for overtimepayments. There is a single harmonised rate of time-and–a-half for all overtime, with the exception of work on general public holidays, which will be paid at double time.
3.2 Overtime payments will be based on the hourly rate provided by basic pay plus any long-term recruitment and retention premia.
3.3 Part-time employees will receive payments for the additional hours at plain time rates until their hours exceed 37.5 hours in the week that the additional hours are worked

Yes, but this is clearly stated in the handbook. If you read the OP carefully she states 'it was decided that'. If this clause in the OP's contract there is nothing to decide, it's clearly stated that PT employees will receive overtime.

Also, the clause you highlighted actually disproves your point. It is not stating that PT workers get paid OT as a special case.|

It is merely stating the rate for PT workers, in a situation where everyone. FT and PT, gets overtime. PT workers get the normal rate, up to the FT equivalent of hours, and presumably time and a half after. Whereas FT workers get time and a half for all overtime. As I have stated several times, the OP's post implies that her job doesn't pay overtime and therefore your example is irrelevant.

That's why everyone is assuming that the OP has the standard, private sector employment lawyer contract. It's not clear-cut, hence the need for going to court. Of course, companies that are ignorant of the law can also end up being taken to court for a clear-cut case but they are unlikely to have grievance/etc processes or a contract like this.

user09876543 · 09/04/2024 12:17

Propertylover · 09/04/2024 12:07

@saltinecrackers

I am not sure we are actually using the same example. I agree part time employees should only be paid overtime on the same basis as full time staff. That is once they have worked and been paid additional hours up to full time hours or if they do overtime on a day a full timer doesn’t work for example Saturday and Sunday.

As per the NHS Staff Handbook extract below Overtime is only paid once an employee has worked and been paid for 37.5 hours.

Up to 37.5 if a part timer works more than their contracted hours they are paid additional hours not overtime.

NHS Staff Handbook
Overtime payments
3.1 For the purposes of this section 3, overtime is those hours worked in excess of 37.5 per week. All staff in pay bands 1 to 7 will be eligible for overtimepayments. There is a single harmonised rate of time-and–a-half for all overtime, with the exception of work on general public holidays, which will be paid at double time.
3.2 Overtime payments will be based on the hourly rate provided by basic pay plus any long-term recruitment and retention premia.
3.3 Part-time employees will receive payments for the additional hours at plain time rates until their hours exceed 37.5 hours in the week that the additional hours are worked

But this is all about additional hours payments/overtime payments. The OP is a salaried lawyer. She isn't entitled to overtime payments of any kind whether overtime payments (hours over the standard FT role) or additional hours payments (hours over a part timer's contracted hours but still less than standard FT hours).

There's no point saying "in the NHS/Local authorities everyone gets paid for the hours they work" when it simply doesn't work that way for 99% of salaried roles in the private sector.

Solicitors in the private sector work such hours as are necessary. Sometimes they might work a 16 hour day. They won't get paid any more, their holiday entitlement won't increase and the rate they get paid for a holiday day won't change.

If they were hourly paid they would all be delighted the situation would be different.

user09876543 · 09/04/2024 12:20

Spirallingdownwards · 09/04/2024 12:26

Sitting here at laughing at the idea that NHS and other public sector methods of paying salaries are in any way comparable to those at private law firms.

saltinecrackers · 09/04/2024 12:27

Spirallingdownwards · 09/04/2024 12:26

Sitting here at laughing at the idea that NHS and other public sector methods of paying salaries are in any way comparable to those at private law firms.

Same here...

Propertylover · 09/04/2024 12:40

I am genuinely interested in the discussion as I come from a pay perspective.

I see this is much more about how pay and holiday pay are calculated rather than additional holiday.

I have always understood there is a difference between part timer additional hours up to full time contracted hours. So if a part timer is contracted to 30 hours but works 45 the policy allows them to be paid at their basic rate up to 37.5 full time hours.

Time worked over full time contracted hours is overtime. Whether or not overtime should be paid is a separate issue. If overtime is paid full and part time staff should be paid on the same basis.

A good example of the difference is entitlement to employer pension contributions. Overtime is non-pensionable but part time additional hours are pensionable. So all employees are entitled to employer pension contributions up to full time hours.

user09876543 · 09/04/2024 12:45

Propertylover · 09/04/2024 12:40

I am genuinely interested in the discussion as I come from a pay perspective.

I see this is much more about how pay and holiday pay are calculated rather than additional holiday.

I have always understood there is a difference between part timer additional hours up to full time contracted hours. So if a part timer is contracted to 30 hours but works 45 the policy allows them to be paid at their basic rate up to 37.5 full time hours.

Time worked over full time contracted hours is overtime. Whether or not overtime should be paid is a separate issue. If overtime is paid full and part time staff should be paid on the same basis.

A good example of the difference is entitlement to employer pension contributions. Overtime is non-pensionable but part time additional hours are pensionable. So all employees are entitled to employer pension contributions up to full time hours.

Only if you are in a public sector role which is below a certain grade and you are eligible for additional payments. Solicitors in private practice are not paid like this (and neither are most people in private sector salaried roles outside of the legal profession).

Holiday pay is effectively irrelevant outside of a situation where someone is leaving and has taken more/less holiday than has been accrued or is taking a day of unpaid leave (in which case the contract should define the method of calculation and for most Monday to Friday roles it will be 1/260). Otherwise you simply get the time off, not "holiday pay".

user09876543 · 09/04/2024 12:54

Holiday pay is effectively irrelevant outside of a situation where someone is leaving and has taken more/less holiday than has been accrued or is taking a day of unpaid leave (in which case the contract should define the method of calculation and for most Monday to Friday roles it will be 1/260). Otherwise you simply get the time off, not "holiday pay".

I should qualify this by saying this applies to a role such as the OP's where no extras are payable.

babyproblems · 09/04/2024 12:58

Happened to me. The only thing you can do is to absolutely put your foot down and work ONLY your part time hours.. It really isn’t sustainable though because will affect your position and prospects at work. I ended up leaving. It happened to me after I went back part time following maternity. I subsequently took redundancy and They then didn’t bother paying me the correct amount for the settlement.. so like you I am at the start of a legal battle. Pretty depressing way to be treated!!!

Propertylover · 09/04/2024 13:02

Very interesting thank you all for explaining.

One thing I am curious about is emphasising “salaried”. Most of the Public Sector are salaried what’s the difference?

daffodilandtulip · 09/04/2024 13:11

When I was an NHS nurse it was like this, can't imagine it's changed.

When I worked on a ward, my flexible agreement was that I used to miss my 30 min break so I could leave 10 mins early for the school run. I had my manager physically stand before the door on more than one occasion, preventing me from leaving. I was slapped on one occasion by another member of staff for attempting to leave. It wasn't unusual to still be there at 23:00 after a 15:00 ending shift, for no extra pay.

I then moved to community and had the exact same caseload for 30 hours as my full time colleagues.

Propertylover · 09/04/2024 13:17

@daffodilandtulip that is awful.

user09876543 · 09/04/2024 13:37

Propertylover · 09/04/2024 13:02

Very interesting thank you all for explaining.

One thing I am curious about is emphasising “salaried”. Most of the Public Sector are salaried what’s the difference?

Edited

In many public sector roles (particularly NHS and local authority) salaried roles below a certain grade are also entitled to extra payment for extra hours worked eg additional hours or overtime. It's unusual for this to be the case in the private sector where only hourly paid roles are generally eligible for these types of payments. Sometimes you see it in unionised industries. For most private sector roles, particularly roles in the "professions", the hours clause in your contract specifically says that you are required to work hours over and above your core hours without any entitlement to additional pay of any kind.

Propertylover · 09/04/2024 13:56

@user09876543 Thank you.

StealthMama · 09/04/2024 20:30

@parttimewarrior it's pretty disingenuous to set up a blog asking for 50,000 people aka women to donate £1.50 each to achieve you supposed financial goal - And then state that if anyone wants a proper legal Understanding of the case to PM you.seriously?

Have a look at the likes of Alison Bailey and Kathleen stock for good examples of women who have successfully crowd funded and won significant legal cases for women's rights.

You've lost my support I'm afraid. You have no case and the grounds for public funding are disingenuous.

I've reported the thread so that MN Towers can take a look.

Original poster

parttimewarrior · 13/04/2024 14:54

Thanks for sharing your stories everyone. It's eye opening. The claim has finally been served and a Preliminary Hearing is listed for 14 June so watch this space.

Anyone other than @mynameiscalypso had a positive experience?

OP posts:

NewName24 · 13/04/2024 16:46

Odd, I thought MN had taken this thread down once.

user09876543 · 13/04/2024 16:57

Yes thought it was taken down because crowdfunding isn’t allowed

AuntieJoyce · 13/04/2024 18:48

The crowdfunding request and link has been deleted