Change To OOH Rate mid Contract?

[j1nx3d]

Hello all
I'm after some clarification on what my standpoint is with regards to a reduction in the OOH hourly pay rate that is stipulated in my contract.
The contract is Inside IR35, and via an Umbrella Co

I was advised by another contractor that firstly, OOH has to be signed off, and it will only be signed off if it's applicable to the role you're tasked with doing.
Secondly, the OOH rate increases after the first 6 months of the contract - should you be renewed.

As with most places, the production environment can not be touched during the day, and my role involves lots of OOH work, so OOH was authorized and added to my contract within the first 2 weeks
Having worked at the company previously via an Outside IR35 contract that was extended multiple times, I thought that I had a decent chance of my contract being extended past the first 6 months, and so an increase in the OOH rate would eventually come

Sure enough, just before the first 6 month contract had finished, I was offered an extension of a further 6 months, and with it came the increase in the OOH hourly rate.
During the first 6 months, the OOH rate was x1.25 the hourly rate, and on the timesheet system, this was the only option to select for OOH work
As soon as I moved into the extension period there were 2 more options for OOH work
Option 1 was x1.5 the hourly rate
Option 2 was X2 the hourly rate

Obviously not wanting to breach the contract or indeed rob the end client - I checked the contract to see what was stipulated as the OOH rate of pay
Thankfully, the contract stated Monday to Sunday, anything OOH could be charged at x2 the hourly rate, and it even stipulated the amount in £ that the x2 rate would be - which was indeed double my normal hourly rate

3 months into the new contract, the management team at the end client out of the blue told me that my timesheet was incorrect and would need amending before it could be approved. The reason given as to why it was incorrect was because I should only be claiming OOH at a rate of x1.5, and NOT X2

I obviously advised them what my contract stated, and the management team requested that I send a copy of my contract to them as proof - which I willingly did.
I then checked with a few other contractors to see what was stipulated in their contracts - whether they had x1.5 or X2
All whom I spoke to had X2 as their contracted rate for OOH work, and the equivalent monetary value stated in £
I didn't hear anything further from the management team regarding my OOH rate
The timesheet I was told needed amending was approved without me making any changes
All subsequent timesheets have also been approved, all of which had an OOH rate of x2

Yesterday, I received an email from the umbrella company stating that there was a new OOH rate starting this month (November), and an ammended contract was attached

The rate for OOH work has decreased from X2 to x1 5
The stated monetary amount in £ has also been decreased to reflect the change from X2 to x1.5
The dates on the contract that was sent to me yesterday are the same dates stated in the original contract

Can anyone please advise as to where I stand from a legal point?
If the umbrella can make changes mid way through an agreed contract, then it's not worth the paper it's written on
Also, if I am forced to accept the new contract, would this mean that the umbrella agency can claim back any money the feel they had over paid me for the past 3 months that I have claimed at a rate of x2 for OOH work?

Thanks in advance

[WTFH]

...

Yesterday, I received an email from the umbrella company stating that there was a new OOH rate starting this month (November), and an ammended contract was attached
...
Can anyone please advise as to where I stand from a legal point?

They've offered you an amended contract. From a legal point of view you can take it or leave it. If you voluntarily choose to reject it, that's your choice.

...
If the umbrella can make changes mid way through an agreed contract, then it's not worth the paper it's written on

No, they haven't. They have offered you an amended contract.

...
Also, if I am forced to accept the new contract...

No one is forcing you to accept the new contract, you can reject it and leave the client. Your choice.


One other thing to note: check the details of your contract for sections about discussing your contract with the end customer, or with fellow contractors on the site.

[eek]

No, they haven't. They have offered you an amended contract.

Sadly not - it's perfectly possible (and legal) that the umbrella has accepted the amended contract on the OP's behalf.

Working through an umbrella is a very different process, you have a contract with the umbrella, the umbrella signs / has the contract with the agency. Everything beyond that is level of nicety - which is a problem when (99% of the time) the umbrella's real customer is the agency not their contractors / employees.

[WTFH]

Sadly not - it's perfectly possible (and legal) that the umbrella has accepted the amended contract on the OP's behalf.

Working through an umbrella is a very different process, you have a contract with the umbrella, the umbrella signs / has the contract with the agency. Everything beyond that is level of nicety - which is a problem when (99% of the time) the umbrella's real customer is the agency not their contractors / employees.

Good point, well made.

I feel there are parts of the story missing - such as why the contract had 2 options on rates, and what discussion the OP had with the umbrella about which rate to use. It appears the OP only discussed it with fellow contractors and the end client, not with the umbrella.

Many years ago in my permie days, I remember time and a half was for evenings during the week or day time at the weekends.
Double time was reserved for working bank holidays, or working more than 8 hours per day at the weekend, but that was fully explained and agreed up front. Any confusion and the first port of call for the contractor should be the umbrella.

[Paralytic]

All sounds fine to me except this bit

The dates on the contract that was sent to me yesterday are the same dates stated in the original contract

I'd not be signing a new contract with a backdated start date that overlaps the x2 OOH rate. Get that changed to the future date when the x1.5 OOH kicks in.

As said above, you then have a choice to sign or look for a job elsewhere.

[eek]

Good point, well made.

I feel there are parts of the story missing - such as why the contract had 2 options on rates, and what discussion the OP had with the umbrella about which rate to use. It appears the OP only discussed it with fellow contractors and the end client, not with the umbrella.

Many years ago in my permie days, I remember time and a half was for evenings during the week or day time at the weekends.
Double time was reserved for working bank holidays, or working more than 8 hours per day at the weekend, but that was fully explained and agreed up front. Any confusion and the first port of call for the contractor should be the umbrella.

Um, have you read the first post?

The contracts (all 3 of them) have all had a single (albeit different) overtime rate specified within it.

It is the timesheet system that is displaying 2 rates but as we don't know whose timesheet system we are talking about here it's likely a communication issue.

And why do you think an umbrella firm will have any idea beyond what the agency contract says? The first point of call should be the agency, the second point of call is which ever manager is signing the timesheets and only then the umbrella.

[eek]

All sounds fine to me except this bit



I'd not be signing a new contract with a backdated start date that overlaps the x2 OOH rate. Get that changed to the future date when the x1.5 OOH kicks in.

As said above, you then have a choice to sign or look for a job elsewhere.

Again - no he doesn't - the umbrella has signed the contract.

The OP's options are to continue working under the new terms or walk away.

I know most people here don't understand the internals of what an umbrella actually does and how an umbrella works but I've already corrected the point that an umbrella worker has little say in whether a contract is signed or not (they should do but reality is different).

[Paralytic]

j1nx3d, were you actually asked to sign a new contract, or is it just a notification of new terms?

[j1nx3d]

Thanks all for the replies
I've not been asked to sign a new contract
It literally states new OT rate in the email, and says please find attached a copy of your contract

The contract has been ammended to show the lower OOH rate
As previously stated :
My original contract not only states that it is a X2 rate - but it actually explicitly states in £ the actual rate that will be paid for OOH work. Why would I then need to check with the Umbrella then the agency what rate I should claim on the timesheet system, if it's already stated in an agreed upon contract?

I checked with other contractors whether their rate for OOH work was x1 5 or X2 AFTER receiving the email yesterday.
Obviously - were it the case that every other contractor had been assigned a rate of x1.5 for OOH work, then I would accept that mine had been done in error, and I shouldn't have been allocated a X2 rate.
Noone else has received a mail thus far saying that their OOH rate will be decreased.

My main concern is regarding them trying to claim back what's already been paid, and the validity of the original contract.
If it can be ammended at whim - why bother with a contract all all?

[eek]

My main concern is regarding them trying to claim back what's already been paid, and the validity of the original contract.
If it can be ammended at whim - why bother with a contract all all?

Well it's not been amended at whim but you've discovered one of the umbrella industry's dirty secrets, the most important customer for most umbrella's isn't the worker (you're a product to abuse as demonstrated above), it's the agency that has put them on their PSL...

As for your actual question we / I don't know if they will claim it back, as I don't see how they can (as you would be able to go to an employment tribunal over it) but that may not stop them reducing payments until the money has been "recovered".

Equally it may just be all OOH time from now on - I suspect the real issue is that you are doing a lot more OOH work than other people are.