As an employee, you may encounter situations where you consistently work more hours than are laid down in your employment contract. This can happen if, for example, you work under an on-call contract, but are being called in to work more and more often. In that case, there may be a presumption of working hours. This presumption allows you to hold your employer accountable for the actual hours you work, even if those hours are not set out in your contract.
In this comprehensive blog, we explain what the presumption of working hours entails, how it works, and what rights and obligations are associated with it. This article is intended to inform both employees and employers about this important aspect of employment law.
What is the presumption of working hours?
The presumption of working hours is a legal principle that protects employees who consistently work more than is stated in their employment contract. If you have worked more hours over the past three months than are laid down in your contract, you have the right to be paid for the same number of hours in the future as well. This can apply to various types of contracts, such as on-call agreements (zero-hours contracts), min/max agreements, as well as regular employment contracts.
When does the presumption of working hours apply?
There is a legal presumption of working hours if, over a period of three months, you have structurally worked more hours than agreed. This means that if, for example, your contract states you would work only 10 hours per week, but in the past three months you have averaged 20 hours per week, you are entitled to be paid for those 20 hours per week.
The employer must then continue to pay you based on the average working hours of the past three months, even if there is temporarily less work. This also applies if you are called in less often than before.
Note: The three-month reference period must not be an exceptional period in which you temporarily performed additional work, for example due to colleagues’ illness or holiday rush. It must be a representative period with a fixed work pattern.
Example scenario
Suppose you have a zero-hours contract and have been called in for 25 hours per week over the past three months. Your employer decides to call you in less in the following month due to a decrease in work, but you then have the right to be paid for 25 hours per week anyway. This is because of the legal presumption of working hours, which is based on the average number of hours worked in the past three months.
Your rights and next steps
- You can invoke the legal presumption of working hours by submitting a request to your employer to adjust the number of contracted hours to the average of the past three months.
- Always check whether specific arrangements about additional work or overtime are included in your employment contract or the applicable collective labor agreement (CLA).
- Is your employer having difficulty adjusting the working hours or refusing the request? Then contact an employment law attorney. An attorney can assess whether going to court makes sense, or guide you in negotiations with your employer without going to court.
Thanks to the legal presumption of working hours, you as an employee are in a stronger position and it helps prevent you from being consistently underpaid for the work you actually perform.
Who does the legal presumption of working hours apply to?
This presumption applies to all employees, including temporary agency workers and on-call workers. It applies regardless of the type of contract, whether you have a fixed-term, open-ended, or on-call employment contract. The only requirement is that there is a regular pattern of work over a period of three months.
Additionally, it is important to know that if you work as a temporary agency worker work, the hours you have worked under different employment contracts with the same employer also count toward determining the working hours.
The reference period: How does this work?
The reference period is the three-month period in which your working hours are counted to calculate the average working hours. This should provide a representative picture of your work pattern. If, for example, you worked more hours than usual during a peak period, such as in the summer, that period may not be representative. In that case, a longer reference period may be used to obtain a more realistic picture of the working hours.
By law, when your employment contract has lasted at least three months, it is presumed that the monthly working hours are equal to the average number of hours worked per month in the past three months. This means, for example, that if you are an on-call worker with a zero-hours contract and have worked an average of 30 hours per month over the past three months, you are entitled to payment for those 30 hours per month. This helps prevent you from consistently working more than your contract states without receiving appropriate compensation.
Note: What matters is that the three-month average provides a realistic picture of your actual work. If the past three months are not representative due to exceptional circumstances (such as temporary busy periods or colleagues’ illness), the reference period can be adjusted to reflect your normal work pattern.
When does the legal presumption of working hours not apply?
The presumption of working hours does not apply in all cases. For example:
- Temporary extra work:
- If you have temporarily worked more hours due to exceptional circumstances, such as covering for a sick colleague, the employer may rely on the temporary nature of the extra work. However, the employer must be able to demonstrate this.Peak periods
: When you work peak hours during seasonal work, for example in the summer or during holidays, the reference period can be adjusted to provide a more realistic picture of your average hours.
What can an employer do if they disagree with the legal presumption?
An employer can try to demonstrate that the hours worked in the past three months are not representative of the normal working hours. However, the burden of proof lies with the employer to show that there was temporary overtime or special circumstances that render the legal presumption inapplicable.
How is the average number of hours worked calculated for successive contracts?
If you have had multiple contracts with the same employer with intervals of up to six months, these periods are added together to determine the average working hours. The intervening periods during which you did not work for the employer do not count.
For example: suppose you worked as an on-call worker for six months at a hospitality venue, then performed no work for four months, and then started again for another six months with the same employer. For calculating the average number of hours worked, only the months actually worked are combined—the intervening four months therefore do not count. Your employer then bases the offer for fixed hours on the average over the twelve months that you actually worked.
This way the law ensures that your efforts are aggregated and your rights, even with interruptions, are preserved.
When does uncertainty arise about the number of hours an on-call worker is entitled to?
Uncertainty about the right to hours usually arises when an on-call worker, for example in the hospitality industry, works structurally more over a longer period than is laid down in the contract. Think of situations where you are regularly scheduled for more hours than your employment contract states. This can become an issue if, for example, you fall ill and it is not immediately clear on how many hours your pay should be continued. In cases of reduced work or fluctuating schedules, it may also be unclear what you as an on-call worker can claim, especially when the average number of hours worked differs significantly from what was agreed on paper. In such cases, the legal presumption provides guidance to determine how many hours of work and pay you are entitled to.
When must an employer make an offer for a fixed number of hours?
Due to changes in the Balanced Labour Market Act (WAB), the rights of on-call workers have been significantly expanded. An important consequence is that your employer is obliged, after 12 months of work—regardless of the type of on-call contract—to make a written or email offer within one month for a fixed number of hours. This fixed number of hours must be at least equal to the average you actually worked in the past twelve months.
Note: if you have had multiple temporary contracts with the same employer, and the breaks between these contracts did not last longer than six months, those periods are added together. Suppose you worked six months at a restaurant, then took a four-month break, and then returned for another six months—then the months worked are added together and the mandatory offer rule applies after this second work period.
After receiving your employer’s proposal, you of course have one month to consider the offer and accept or refuse it. This is intended to provide more clarity and certainty to employees with on-call contracts.
What are your rights as an employee?
If you believe there is a legal presumption of working hours, you can report this to your employer. Your employer is then obliged to adjust your working hours based on the average hours you have worked in the past three months. This means that you must henceforth be paid for the average working hours, even if you are called in less.
It is important to note that the legal presumption of working hours constitutes a minimum. You are therefore entitled to payment for the average hours, but you can always work more hours if this is agreed with your employer.
How does the process work?
If, as an on-call worker, you have structurally worked more hours than are laid down in your employment contract, you can, on the basis of the legal presumption, have a contract with a fixed number of hours
put in place. Your employer may try to rebut this presumption, for example by demonstrating that the relevant period is not representative. Think of situations such as a seasonal peak (for example in the summer months at hospitality businesses) or a temporary increase in hours because several colleagues were ill or on holiday. The burden of proof for this lies with the employer.
If the employer can convincingly show that there was only temporary extra work or exceptional circumstances, a judge may decide that the presumption does not apply and reject your request. In all other cases you are entitled to the adjusted working hours.
What changes for on-call workers under the Balanced Labour Market Act?
With the introduction of the Balanced Labour Market Act (WAB), the position of on-call workers has been significantly strengthened. Employers are now obliged to make on-call workers who have been employed for 12 months a written or digital offer within one month for a fixed number of hours. This offer must be at least equal to the average number of hours you actually worked in the past year.
It does not matter whether your contracts follow each other directly: if there is a break of up to six months between two contracts, the periods are added together to reach these twelve months. For example, you work six months in hospitality, are then out of employment for four months, and then start again for six months with the same employer. In that case, your employer must, after the second period of six months, make you an offer for the average number of hours over those total twelve months.
You are given at least one month to consider this proposal and either accept or decline it. This creates more certainty about your salary and working hours and offers better protection against uncertainty around fluctuating schedules and call-ins.
What should you do if your employer does not cooperate?
If your employer is not willing to adjust your working hours based on the legal presumption, you can take legal action. At Arslan Attorneys
we are happy to help you enforce your rights. Our employment law attorneys have extensive experience with employment disputes and can guide you through the process to obtain the correct working hours and corresponding payment.
Contact Arslan Attorneys
