Marie Smith gets legal guidance this week from Helen Badger, employment law expert, Browne Jacobson and Martin Brewer, a Partner with the employment team of Mills & Reeve on shifting pay patterns for job swaps between grades.
The question:
We have a number of employees who are all employed as general operatives and it states that on their contracts with their hourly rates of pay. Some shifts are on different rates of pay due to the nature of the work they do.
If an employee from the lower rate of pay shift was asked to cover for the higher rate of pay shift, then do we have to pay that employee the higher rate of pay for that shift? And what if it was just for a couple of hours cover? The employees are all male so there would be no claim of sex discrimination re equal pay.
Any help would be appreciated as I am hearing conflicting advice and I would like to know legally where we stand.
Marie Smith
The answers:
Helen Badger, employment law expert, Browne Jacobson
An employee’s salary is governed by the terms of their contract of employment. Employees rate of pay is specified in the contract and, provided there is no additional provision suggesting rates of pay will be higher for different shifts, you would not be obliged to pay employees a higher rate of pay because they are covering this other shift.
As you suggest, if this was a mixed workforce there may be the potential for equal pay claims; in this case a claim that an employee is doing like work to that of a comparator but being paid less. However, provided the lower paid employees cannot identify a comparator of the opposite gender receiving the higher rate of pay for working on the same shift, the company should be protected from such claims.
The only note of caution I would sound is that employee relations often become strained when staff see people doing the same work as them but being paid more. If employees are aware that colleagues working on the shift they are covering receive a higher rate of pay, you may be very short of volunteers to cover.
Helen can be contacted at: hbadger@brownejacobson.com
Martin Brewer, is a Partner with the employment team of Mills & Reeve
Marie, this is a contractual issue. The question is, in agreeing to cover a shift which is normally paid at a higher rate, what was agreed with the employee who agreed to cover? If you agreed that the cover would be provided at that employee’s normal rate then that is what you pay.
If you agreed that during the time of the cover the employee would receive the relevant shift rate, than that is what is payable.
It seems likely from your question, that nothing was said about this. Therefore, if the matter was litigated, we need to try to understand what a judge might make of all this. It seems to me to be strongly arguable that in the absence of any express agreement it would be perfectly possible to find that the employee’s reasonable expectation was that he or she would be paid the rate for the shift.
Going forward the clear advice must be to make sure that you expressly agree the rate/other terms (which can be anything you choose) of the cover work.
Martin can be contacted at: martin.brewer@mills-reeve.com
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