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Employment

Asked to do unpaid overtime? That’s wage theft and it could be pushing your pay below minimum wage

Unpaid overtime could be pushing your pay below the minimum wage. Here’s how to get what you’re owed.

What’s an extra 30 minutes at the end of a shift when you’re working as part of a ‘family’? 

For anyone who has worked shifts in hospitality or retail, this is a classic red flag. It’s not only wage theft, but could be pushing your pay below the legal minimum wage

Wage theft chips away at someone’s wages, quietly. In many professions there is a culture of overwork, where people pride themselves on staying late or chastise those who don’t, but when employees are already working on minimum wage, it can quickly become unlawful.

“There is a tendency for businesses to systematically chip away at people’s rights in an effort to cut costs. It’s been a difficult year for a lot of businesses, but that’s no reason to take from workers,” Dr Dora-Olivia Vicol, director of the Work Rights Centre told The Big Issue

In 2019, “wage theft” in Britain amounted to an estimated £35billion of unpaid wages. But workers may not even realise it’s happening. 

A third of the cases dealt with by the Work Rights Centre are to do with non-payment of wages, in other words, wage theft. Here’s how to identify wage theft, and what to do about it.

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What is wage theft?

Wage theft is simply when an employer doesn’t give an employee all of the money they are owed. 

Commonly, that can translate into stealing an employee’s time, i.e not paying them for all hours worked It comes down to a misrepresentation of hours worked, so while you may be salaried to work a certain number of hours per week, say 35, overtime or additional tasks could make this number higher. 

Wage theft is “a failure to pay a worker all that they are contractually owed for the labour power or the time that they have provided to an employer,” says Nick Clark, research fellow at Middlesex University and principal investigator on Unpaid Britain, an organisation investigating unpaid holiday wages. 

“If you’ve got a large workforce, if you only steal 20 minutes a day from every worker, over a year it adds up to a substantial amount of money,” said Clark. 

“You don’t have to steal a huge amount off a few people, you’re stealing a small amount off thousands on a regular basis. That’s where the millions are made.”

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What does wage theft look like in practice?

Wage theft is any time spent working that you are not being paid for. Here are some common examples of work that you might not be paid for, but should be:

  1. A requirement to arrive early or stay late to change into a mandatory uniform or protective clothing. For example, a performer who would spend time putting on make-up and a costume, or a veterinary nurse who would spend time sanitising and changing into scrubs. 
  2. Travel that is outside of your standard commute time, such as travelling to visit clients or service users as a trainer or support workers. 
  3. Time spent setting up before, or closing down after, your shift has officially finished, for example setting up a till or opening up a shop. 

This is all time spent working and should be paid for by an employer.

How can wage theft push pay below the minimum wage?

Imagine you’re a salaried employee earning £19,000 a year, before tax. Your salary requires you to work 37 hours each week, and you’re 25. 

This means that you’re being paid £9.88 per hour, great, that’s just above the national living wage for someone in your age category of £9.50.

But your boss has started asking you to stay an extra 30 minutes each day to clean up. At first this was a favour, but now it’s expected of you every day. On one occasion you said that you didn’t have to stay, and your boss said that in future you should factor the daily clean up into your plans.

So you’re now working an extra 2.5 hours each week, pushing down your hourly pay to £9.25, which is below the national living wage. That’s an extra 130 hours worked each year, or £1,235 of wages stolen from your paypacket.

If the case was taken to an employment tribunal and the judge found they were “systematically expected to exceed the number of hours in their contract then this would be found to be unlawful,” says Vicol. 

The minimum wage went up on April 1 2022 – so check your pay

The minimum wage and living wage went up on  April 1 2022, and so should your pay packet if these are the rates used to calculate your pay.

From April 2022, people aged 23  should be paid the national living wage of £9.50 per hour, which for a person working 37.5 hours per week, is a salary of around £19,700. 

Those aged 21 and 22 saw the greatest increase to their pay, up 83p to £9.18. Sixteen and 17-year-olds got just a 19p increase to £4.81, and 18- to 20-year-olds a 27p increase to £6.83.

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What to do if you’re a victim of wage theft or are being paid below the minimum wage

“These everyday abuses are not normal, we should not tolerate them, and there are things that can be done,” says Vicol, of the Work Rights Centre. 

So, here’s what to do if you are not being paid what you’re owed, or think you are being paid less than the minimum wage. 

You can calculate your hourly earnings from your salary using online tools and, of course, if you’re already paid the minimum wage for your age category and expected to work longer hours, then you are underpaid. 

If you find that you are being underpaid, you have three options

Try to resolve it with your employer. This is what the Work Rights Centre recommends first and foremost. They can offer advice via phone or at drop-in clinics in Manchester and London for anyone who is being denied pay from their employer. 

Acas (the Advisory, Conciliation and Arbitration Service) also recommends first approaching your employer for an informal chat, showing them your calculations and explaining your hours worked. 

If you have one, you could request the presence of someone from HR and a union representative.

Next up, if your employer still denies paying you below minimum wage or refuses to pay you what you are legally owed, you should report them to HMRC to investigate. 

The Low Pay Commission names and shames employers who have failed to pay all of their employees at least the minimum wage, with household names including John Lewis, The Body Shop and Sheffield United Football Club issued fines in 2021, so they should get their just deserts. 

And finally, you can make a claim to an employment tribunal. This might be the best option if you realise that you have been underpaid for a long period of time – reclaimed wages can go back up to two years. However, Vicol cautions that tribunals can take an “emotional and psycological toll and can carry some cost.”

To make a claim, you must tell Acas first where you will be offered the option of ‘early conciliation’. If that doesn’t work, or is something you do not wish to do, then you can go to the employment tribunal.

Career tips and advice from our Jobs and Training series:

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