Employment Law/Tied Cottage help!

mrsgiles · Sep 30, 2020

Hi guys,

Farmer's wife here... My OH is a farm worker employed by a farm, and he's salaried. (£24k). His contract is for 39 hours a week, 28 days holiday. He's been working here since 2013 (just before the law changed in October of that year). He has a Shorthold Tenancy Agreement (not an agricultural one) which is not mentioned on his contract, therefore I'm not 100% it can be classed as a tied cottage? Is it separate? The tenancy agreement states his rent is £25 per month, but he was never asked to actually pay it. He just took the tenancy agreement and put it in a drawer (all before I met him).

Of course, during harvest, his hours have more than doubled. And this year has been a bad one- it's usually 100 hour weeks. However, he is not paid any overtime for this. He just gets a £1k bonus annually. His contract states he can be asked to do more than 39 hours 'as is reasonable.' What's reasonable? He regularly works on bank holidays and doesn't get time off in lieu, or his correct holiday which I believe is 31 days, as he was hired prior to Oct 2013. (Can you tell I've been Googling my butt off?) His boss claims he should only get 2 weeks holiday (v. Old school). His average hourly rate is regularly way under minimum wage. If he says anything to his boss, he's told 'that's farming.' I totally get that, but as far as I'm concerned it's only farming when you're benefiting from the long hours and bad pay. It's not my OH's farm! He's an employee with a contract that's being breached.

My question is this; can they say that he's getting paid less because he gets the cottage? From what I can read online, they can only deduct £1.50 a week for accommodation, but as the agreement says £25 is that the be all and end all? I'm under the impression that because it's a Shorthold Tenancy Agreement and NOT an agricultural one, they are still subject to paying him at least minimum wage on average based on his hours?

Thanks so much for any help you can offer. I'm new to the farming world, so if I've gotten anything wrong, please be kind!

Formatted · Sep 30, 2020

The issue here doesn't sound like its the cottage, its the expectations of the boss vs the expectations of the worker. If you're ending up in a legal conversation about hours vs reward then its probably time to move on.

mrsgiles · Sep 30, 2020

I agree with you there. I'm struggling to find another similar job to be honest with you.

Still Farming · Sep 30, 2020

"Over a barrel", sounds like???

Exfarmer · Sep 30, 2020

I believe they cannot expect him to work more than his salary divided by the minimum wage.

I also think they cannot expect him to work lower hours in off peak periods to balance the long summer hours.
Not sure about the cottage, but would suspect that would come under shorthand tenancy law.
Sadly there are some employers who like to take the pee, on the other hand perhaps time for him to ask for a fairly substantial raise to reflect these extended hours. If the boss is a half decent person he should recognise them.

Still Farming · Sep 30, 2020

Exfarmer said:
I believe they cannot expect him to work more than his salary divided by the minimum wage.

I also think they cannot expect him to work lower hours in off peak periods to balance the long summer hours.
Not sure about the cottage, but would suspect that would come under shorthand tenancy law.
Sadly there are some employers who like to take the pee, on the other hand perhaps time for him to ask for a fairly substantial raise to reflect these extended hours. If the boss is a half decent person he should recognise them.

Possibly plus raise cottage rent inline with going rates too???

Montexy · Sep 30, 2020

Don't rock the boat just yet as I don't think your OH's employer will listen and it will probably cause bad feeling. Concentrate all your efforts on looking for another job where you will be more appreciated. When you have something lined up you will be in a stronger position to negotiate a new/ better contract of employment if you would prefer to stay on. IMO anyone who thinks two weeks holiday a year and unlimited unpaid overtime is acceptable in 2020 is not worth any loyalty.

Chris F · Sep 30, 2020

Exfarmer said:
I believe they cannot expect him to work more than his salary divided by the minimum wage.

I also think they cannot expect him to work lower hours in off peak periods to balance the long summer hours.
Not sure about the cottage, but would suspect that would come under shorthand tenancy law.
Sadly there are some employers who like to take the pee, on the other hand perhaps time for him to ask for a fairly substantial raise to reflect these extended hours. If the boss is a half decent person he should recognise them.

I was going to say the same about minimum wage. They must pay minimum wage x hours or salary - which ever is the greater. Paying less than that puts the employer in very sticky water. That said there may be a discount on your short-hold tenancy which although not mentioned in the contract still exists. Which when added back in, this may see them the right side of the minimum wage rule. Not that will protect the employer in court. Only the contract would do that.

It does sound like the situation needs a resolution to protect the employer as well as yourselves. Even if that resolution is just to write everything down properly.

Of course - your OH could resign and then go to tribunal for constructive dismissal. And if hours have been logged, he will win, but that will take a long time and end up with not having a job. A case where no one wins.

curlietailz · Sep 30, 2020

There is a difference between hours worked and hours on the farm
If you live on the farm it’s very difficult to argue wether he actually is working or not

Its very easy to waste hours each day letting you dogs out, going home for a cuppa, talking to your mate who turns up, just watching a bit of cricket or racing etc etc

for a start I’d look at John Nix to see man hours per operation.
that’s a start point to see how many hours per year the average man should take to do a job

off the top of my head I think it works out as one man per 700 acres of arable

if you have less than 700 acres of arable it would be difficult to prove that you worked more hours as the average mancan do

Kidds · Sep 30, 2020

mrsgiles said:
From what I can read online, they can only deduct £1.50 a week for accommodation, but as the agreement says £25 is that the be all and end all?

I think you will find the employer can not take a rent that would put the worker on more than £1.50 below minimum wage.
eg. if the wage is £150 and minimum wage was £100 he can deduct no more than £51.50 in rent.(obviously made up figures to illustrate)

PhilipB · Sep 30, 2020

mrsgiles said:
I agree with you there. I'm struggling to find another similar job to be honest with you.

It doesn't sound great.

Surely a fairly key question of how much would the market rent of the cottage be? If you're in a very expensive area and getting good housing for nothing a month as a result of him having the job then the "deal" for you might be a good one, strictly legal or not...

But I'm guessing that's not the situation here.

NLF · Sep 30, 2020

There’s no one as mean as a mean farmer (which is not to say all farmers are mean).

I think you could claim the assured short-hold tenancy is a service tenancy by virtue of the fact that you’ve never paid the agreed rent. Its not my area of expertise but I believe that in the event your partner gets made redundant or fired etc he would have security of tenure. In residential tenancies the law is nearly always on the side of the tenant.

Good luck.

curlietailz · Sep 30, 2020

You could ask the

NLF said:
There’s no one as mean as a mean farmer (which is not to say all farmers are mean).

I think you could claim the assured short-hold tenancy is a service tenancy by virtue of the fact that you’ve never paid the agreed rent. Its not my area of expertise but I believe that in the event your partner gets made redundant or fired etc he would have security of tenure. In residential tenancies the law is nearly always on the side of the tenant.

Good luck.

But if the property is the main farmhouse then he does not have the right to stay there if the farmer needs it for another farm worker or a close family member
Although alternative accommodation should be provided
And a fair rent charged
Which is usually 50% of market rent

not advice BTW
Just observation

Still Farming · Sep 30, 2020

PhilipB said:
It doesn't sound great.

Surely a fairly key question of how much would the market rent of the cottage be? If you're in a very expensive area and getting good housing for nothing a month as a result of him having the job then the "deal" for you might be a good one, strictly legal or not...

But I'm guessing that's not the situation here.

Not knowing the area or buildings but got to be a rent off £400-£900 month plus rates,bills etc etc atleast ???

mrsgiles · Sep 30, 2020

When he first started he was told the rent was £400, and would be deducted from his pay. However, there are no such deductions on his official payslip- just the usual.

Ukjay · Sep 30, 2020

To be honest, take all the documents to a good employment solicitor, as there are far too many questions needed to be answered on your part in the open that could show different impacts from both sides, not just the allegations against the farmer in question here.

For example, it appears that he / you have been living rent free for 7 years at least, and there is no mention of the bills etc so will ignore that area for this example.
With that, it would be approximately £60k with average rents (may differ depending on area). So your salary has already jumped to circa £32k year excluding any additional possible perks we do not know about (use of farm vehicles etc, free fuel, free insurance etc).

This is why I suggest you need to seek professional help here, as everything will get dragged up.

Still Farming · Sep 30, 2020

Ukjay said:
To be honest, take all the documents to a good employment solicitor, as there are far too many questions needed to be answered on your part in the open that could show different impacts from both sides, not just the allegations against the farmer in question here.

For example, it appears that he / you have been living rent free for 7 years at least, and there is no mention of the bills etc so will ignore that area for this example.
With that, it would be approximately £60k with average rents (may differ depending on area). So your salary has already jumped to circa £32k year excluding any additional possible perks we do not know about (use of farm vehicles etc, free fuel, free insurance etc).

This is why I suggest you need to seek professional help here, as everything will get dragged up.

Hornet's nest possibly?
Hard to say but when you weigh it all up sometimes best to let thing's lie unless your prepared to get all sorted ,pay up or get out?
Go steady as you could be out of work and homeless if all gets nasty?

Dairyfarmerswife · Sep 30, 2020

I would suggest contacting ACAS for some advice, and ensure he is keeping a record of the hours he worked.

I've just gone through the process of updating staff contracts and they told me that our salaried employee must earn more than the minimum wage for each pay period. So if he's paid monthly, his hours for that month must be paid at least at minimum wage. I believe this can be backdated if you have records of time worked.

Has he signed out of the working time regulations?

Also, even if he has a contract, employment law changes all the time and the employer is responsible for making sure they are up to date with regulations.

But, as others have said, take advice. I think ACAS will give free advice to employees.

Ukjay · Sep 30, 2020

Still Farming said:
Hornet's nest possibly?
Hard to say but when you weigh it all up sometimes best to let thing's lie unless your prepared to get all sorted ,pay up or get out?
Go steady as you could be out of work and homeless if all gets nasty?

That is why I say take sound professional advice, not from people on here.

This could easily end up in tears and a lot of stress at a bad time.

Goweresque · Sep 30, 2020

Just remember that the benefit of the accommodation is non-taxable, whereas extra salary is taxed. So if the salary was boosted to take into account all the hours worked, your OH would have to pay tax on that extra income, at roughly 32% (income tax plus NI) and then pay a market rate rent out of the taxed income. He could end up not much better off, and have a p*ssed off employer.

For example, a house with a market rent of £500/month provided as part of the job is worth around £9k in extra salary, as the salary is taxed and the house benefit isn't.

How many hours a week is he working, on average? For his weekly pay rate to drop below minimum wage it would seem that he would have to be working 53 hours per week every week.

There's two ways of looking at this, the legalistic way and the realistic way. On the face of it your OH is being wrongly treated, and has a reasonable case for some form of compensation. On the other hand if he goes down that route and loses the job how likely is he to walk into another job locally that pays about £34k-ish gross per year? In the current economic climate there's got to be a significant value to working in a sector thats largely unaffected by the current virus issues.

I would be working on the holiday entitlement issue first and foremost as thats the most egregious part of the tale, statutory holiday entitlement is there in black and white and he should be getting that.

Employment Law/Tied Cottage help!

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