As an employee, you may face situations where you consistently work more hours than stipulated in your employment contract. This can happen if you are, for example, working on a call-up basis but are increasingly being called up to work. In these instances, there might be a presumption of workload. This presumption gives you the ability to hold your employer accountable for the actual hours worked, even if these hours are not recorded in your contract.

In this comprehensive blog post, we will unpack what the presumption of workload entails, how it works, and the rights and duties associated with this. This article is aimed at both employees and employers to inform them about this important aspect of labor law.

What is the presumption of workscope?

The presumption of workload is a legal principle which protects employees who regularly work more than is stated in their employment contract. If you have worked more hours than contracted during the past three months, you are entitled to payment for the same amount of hours, even in the future. This can apply to various types of contracts, including call-off contracts (zero-hours contracts), minimum/maximum agreements, and regular employment contracts.

When do we speak of a workload presumption?

If you have consistently worked more hours than agreed upon over a period of three months, the presumption of workload is applicable. This means that if your contract stipulates that you only work 10 hours per week but you have worked an average of 20 hours per week over the last three months, you are entitled to payment for those 20 hours a week.

Your employer must therefore continue to pay you based on the average workload over the past three months, even if there is temporarily less work. This also applies if you are not called up as much as before.

Scenario

Supposing you have a zero-hours contract and have been called up weekly to work 25 hours for the past three months. If your employer decides to call you up less in the next month due to a decrease in work, you are still entitled to payment for 25 hours per week. This is due to the presumption of workload, which is based on the average number of hours worked in the past three months.

Who is covered by the presumption of workload?

This presumption applies to all employees, including temporary workers and call-up workers. It applies regardless of the contract type, whether you have a fixed-term contract, permanent contract, or a call-off contract. The only requirement is that there must be a structured, consistent working pattern over a period of three months.

Furthermore, you should note that if you work as a temp, the hours worked under different contracts with the same employer also count towards determining the work scope.

The reference period: How does it work?

The reference period is the three-month period within which your working hours are counted to calculate the average workload. This should give a representative overview of your working pattern. If you have worked more hours than usual during a peak period, such as the summer, this period may not be representative. In such cases, a longer reference period may be used to gain a more accurate understanding of the workload.

When does the presumption of workload not apply?

The presumption of workload does not apply in all cases. For example:

• Temporary additional work: If you have temporarily worked more hours due to exceptional circumstances, such as covering for a sick colleague, the employer might appeal to the temporary nature of the additional work. The employer, however, must provide evidence.
• Peak periods: If you work extra hours during seasonal jobs, such as in summer or during holidays, the reference period can be adjusted to get a realistic picture of your average working hours.

What can an employer do if they do not agree with the presumption?

An employer can try to demonstrate that the hours worked in the past three months do not represent the normal workload. However, the burden of proof lies on the employer to demonstrate that there was temporary additional work or special circumstances that make the presumption of workload irrelevant.

What are your rights as an employee?

If you believe there is a presumption of workload, you can bring this to your employer’s attention. Your employer would then be obligated to adjust your workload based on the average hours you’ve worked over the past three months. This means that you must continue to be paid for your average working time, even if you’re not called in as much.

It’s important to note here that the presumption of workload sets a minimum. Thus, you are entitled to payment for average hours but can always work more hours if agreed upon with your employer.

What should you do if your employer does not cooperate?

If your employer does not wish to adjust your workload based on the presumption, you can take legal action. At Arslan Advocates, we are pleased to assist you in enforcing your rights. Our labor law attorneys have extensive experience with labor disputes and can guide you in the process to get the correct workload and corresponding payment.

Contact Arslan Advocates

If you have questions about workload presumption, your employment contract, or other labor law issues, our specialized labor law attorneys are here to assist you. Contact us for a no-obligation consultation and discover how we can help you get what you are entitled to.