The County Council have admitted to not paying the Minimum Wage on 31 occasions. The revelation came when UNISON challenged the Council over recent case law regarding sleep in payments. This highlighted that sleeping time has to be factored into the minimum wage calculations. As many staff in our Residential units carry out sleep in duties, there was a potential of the Council failing foul of this piece of Case law. Particulalry as several years ago, the Council coerced workers in this area to sign seperate 'zero hour' contracts if they wanted to work additional hours. This meant that workers in our Residential homes, already some of the poorest paid, working unsocialable hours were denied overtime rates of pay for additional hours worked. The Council did not at the same time impose such restrictions on agency workers, who continued to be paid the equivalent of 'overtime' and above.
UNISON raised this Case law several months ago, asking senior managers to look at the possibility that the Council had underpaid their own staff, thus violating the minimum wage agreements. Surprisingly management were unaware of this change, but promised to investigate. After several months and many questions, management confessed that there had been 31 instances identified, where the minimum wage had been broken under this case law. UNISON received assurances that procedures had now been put in place by senior mangers, instructing Residential managers of changes, and this underpayment should not happen in the future. Assurance was also given that all those identified as being paid under the minimum wage for work already carried out, would be compensated.
To date, UNISON is aware that this has not been carried out. UNISON believes this is particulalrly worrying as many of those identified as being paid below the ninimum wage, have now been TUPE'd out to Action for Children. UNISON raised this salary issue with senior managers prior to the TUPE transfer, UNISON received reassurances that Action for Children were aware of the underpayment, but the Council would remain responsible for its payment. This was especially important, as under TUPE, historical issues transfer as well. Should Action for Children not of been informed of this outstanding minimum wage issue, then the Council may be in violtion of other legislation.
So how did the Council break the minimum wage? The formulae is a simple one, so to find out if you have been paid under the minimum wage by your employer, follow the examples below.
- Worker A is paid weekly.
- They work 30 hours a week at £ 7 / hour
- They also do two sleep-ins of 10 hours each, each of which is paid at £30.
- Overall, they have worked 50 hours, and have been paid £270.
- Their average hourly pay is £5.40 an hour, which is less than the NMW.
- So they are entitled to a pay rise to at least the NMW level overall, and possibly back pay.
- Worker B is paid weekly.
- They work 30 hours a week at £ 8 / hour
- They also do one sleep-in of 10 hours, for which they are paid £30.
- Overall, they have worked 40 hours, and have been paid £270.
- Their average hourly pay is £6.75 an hour, which is more than the NMW.
- So they are NOT entitled to a pay rise, under NMW regulations.
Following these examples, should you believe that you have been paid below the minimum wage, please speak with your UNISON official, either at work or in the Branch office. UNISON will be able to support you in reclaiming your lost salar, and implementing future pay structures to make sure you are paid at least the minimum wage for all your hours spent at work.
UPDATE! 25th November: Payments to all staff identified have now been made. If you believe you have been paid less than the minimum wage, contact your local rep or call the Branch for support.