My boss has offered me to go salaried at work after I gave my resignation in. I sad yes to this and stayed however I have not signed a new contract and am still on my 32 hour pay horly contract, we decided from this month august i would go salaried but I have been under staffed and had to do more than my contracted. I have done 188 hours this month at a 18000 a year salary before tax that leaves me at 1500 a month divide that by my hours worked that leaves me at £7.97 a hour which is under the min wage as I'm 31. He has said that they need me to what ever hours I need to as I havnt signed anything am I still entitled to the money i would be losing out in also is it legal for me to be working under the min wage on a salary? Many thanks:-)

  • More than anything it sounds like you are being taken advantage off and if you have another work opportunity lined up you'd be better off leaving. – Stun Brick Aug 23 '19 at 11:04
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    You said I have not signed a new contract, but did you actually get given one (and just not signed it)? – Justin Aug 23 '19 at 11:27
  • whether you are paid an hourly rate or a salary your employer still has to pay you above minimum wage – PeterH Aug 23 '19 at 14:46

If you're changing from hourly to salaried then as you suspected you should be given a new contract that stipulates the new terms of your employment - including what your "basic" working hours are. This figure is then used to work out your effective hourly rate for minimum wage purposes (see here for details and examples).

This rate must be at least the minimum wage amount. It is possible to work more hours than the "basic" as a salaried employee and for this to be unpaid (resulting in the effective hourly rate dropping below the minimum wage) and that's legal - however they can't require you to do that as that would be illegal. That might sound like a distinction without a difference but it's not - they can't fire you or otherwise discipline you for refusing to do hours that put you below minimum wage.

Salaried contracts often contain a generalized provision for "additional hours as required" and this is legal enough - but they can't take you over the amount for the year that would put you below minimum wage. In your case this would be 2,192.45 hours in a year (and any time you take as annual leave counts as if you had "worked" your basic hours for that leave period) - how it gets considered for periods less than a year is.. murky and best left for the legal system to decide but it might be difficult to argue that the month so far should simply be scaled up to the full year. The employer could argue that under staffing situation of August didn't represent the norm and the hours over the year would even out to ensure you remained above the minimum wage.

I'm not a lawyer so this isn't legal advice but in the absence of a new documented set of terms (i.e. a new contract with new hours etc) you'd likely be considered to be still working under the terms of your existing contract and thus be eligible for the extra cash. Citizens Advice Bureau would be a good first port of call if you wanted to know your legal ground before getting expensive solicitors involved.

On the face of it the situation doesn't look great - your employer may be trying to have their cake and eat it here. But I'd say it's too early to be taking drastic actions, keep a personal log of your hours and make sure you request your new contract in writing (e-mail is fine for this) and talk to the CAB to find out your exact standing. If they don't get their act together in the next few weeks to your satisfaction I'd be putting that resignation back in personally.

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    +1 for Go to the Citizens Advice Bureau. I've said it before on here, but it's free; just make an appointment and take all paperwork with you. – Justin Aug 23 '19 at 11:26

IMHO, no contract, no change.

Until its signed, negotiate, you already got wind of why they want you to move to salary.

You should negotiate salary as if you will be working around 200 hrs / month

And try to limit your hours obligation, perhaps bonuses and additional flex time for every X hours worked over the specific time-span

As per main question of the post - you should tell or better email to your manager that because you haven't seen / signed any contract , you still consider yourself on hourly wage

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  • The last paragraph: plus 1... and when signing the new contract date it that day, not back-dated... – Solar Mike Aug 23 '19 at 14:31

Firstly I'm not a lawyer, but to address the first question it isn’t legal to be paid less than the minimum wage. However, are you being paid less than minimum wage? That is a slightly more debatable one, and chances are it could be argued ‘no’ if there is no agreement in place for how many hours you’re expected to work. It sounds to me like you get a set figure per year, but you’re working essentially free overtime – that is an issue.

Ideally it would be good to know what your current contract is? Are you a full time employee? Part-time (albeit with a lot of overtime!)? A temp / agency worker? As there are different rights available depending on what your contract actually says.

If you’ve signed to opt out of the European Working Time Directive then you have acknowledged willingness to work (potentially) more than 48 hours per week. You don’t necessarily need to sign anything to alert your contract, it can be a verbal acceptance, or performing a specific task for a period of time altering your role. You can, and should, request a copy of your up-to-date employment contract ASAP.

In the UK if you work overtime you can be entitled to holiday pay thanks to a 2015 employment tribunal ruling, which would mean at the end of the year you could get additional money for holiday earned during overtime. You need to make sure that any and all overtime is well documented and submitted to the company, you don’t want to miss out on that additional holiday allowance if you’re entitled to it.

If you can’t get a hold of an improved contract, stating you’re salaried, and outlining expected hours and rates then I’d suggest you brush up your CV and start looking for a better employer.

A news article on the EAT around overtime

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