Advice from Employment Law Gurus please

Burny_Sweetwater_Glasgow · 4 October 2016 at 7:02PM

Need some sound advice from those skilled in Employment law.

I apologise for the lengthy posting but I want to preempt having to go back and forward with too many questions and answers so have covered most, I think, bits of info that are needed to give us some advice...so here goes and thanks for any help you can offer.

I wonder if you can offer any advice to me and my work colleagues. Our employer is major holiday resort company and they have commenced a 45 day consultation process with the staff who currently have live in accommodation on one of their resorts. Basically they have plans to develop an area on a resort which entails the demolishing of all the staff onsite accommodation. This will effect over 400 staff. They have purchased property in the local area but this will not provide accommodation for all the staff, it will leave over 200 displaced and having to find alternative accommodation.
Most contracts are not permanent contracts, they are for the most part a fixed term to January 5th each year and as a rule offering hours up to 39 pw but with no guarantee of 39 hours per week but may involve working much higher hours according to the needs of the business, so basically zero hour contracts. Also the majority of those affected are on minimum wages. Many of the staff are from eastern Europe and even our minimum wage is better than what they can earn in their homelands but the attraction that has made so many come to work for this company has been that the accommodation is very cheap in comparison to rents in the locality. This attraction applies equally to all the British staff here as well as it makes it feasible to be able to survive even on the minimum wage.
The company have stated that they are legally obliged to have a 45 day consultation period because of the numbers involved but have said that this is not a process for making people redundant as that does not apply because of the type of contracts most of us have. Are they correct to say this?
They also stated that they appreciate that for those that are displaced at the end of the process will face some problems, namely :-
Most letting agent/Landlords want tenants to have permanent employment contracts with stipulated hours

they have said that they are considering permanent ‘annualised’ contracts (these contracts are also up for discussion at this time)
All Agents/Landlords want security deposits/ advance rent maybe guarantors and all charge setting up fees

they say they may look at assisting in these areas but have not guaranteed to cover all or any of these requirements.
Now even the cheapest option for any of these people is to rent a room in a house/flat in the locality. Issue here is that there are not 200+ rooms available in the locality and even this option would cost the staff members an extra 240 pm in rent plus possible travelling costs.
Next option would be for house/flat sharing. The cost to each individual would still be a similar amount or even higher (to cover rent and all associated bills) but as 90% of all properties are unfurnished they would have to fork out additional money to furnish them. Again in the locality it would be hard to find sufficient affordable properties to house all these displaced people.
Many of those affected are very despondent as they see a bleak future as they know on present wages/contracts etc it will be virtually impossible to survive and they have been put in this position through no wish of their own, its being forced upon them and they really do not know where they stand at this time, hence the need for advice. There is no union in the workplace.
Another issue on which your advice would be greatly appreciated is for the people in this group who have been here working at the resort for many years. As I said at the beginning these proposals affect over 400 staff members. In among that number are 170 who have been working and living in staff accommodation for 2 years or more (included in that number are over 80 who have been here working/living for 5-13 years)
Now the employer has said that they never intended for any staff member to see the accommodation as becoming their ‘home’ but naturally as you can imagine some have made their accommodation into their home after so long. Do any of these people have any kind of rights in relation to losing what they now call ‘their home’? These people have given years of good service and they stand to lose their ‘security’, through no fault of their own.
Any advice you can offer would be so appreciated by all of us. The management admit that the end result will cost the company money, they admit they have a budget but will not reveal the amount available. They have just said let them know 1) who we think should allocated accommodation in the properties they have acquired and 2) for those that are displaced, what we want and they will look at it and consider requests from individuals at the end of the process. To many of us, this feels like this is a ‘divide and conquer’ attitude whereas we would like to negotiate as a whole group together.

Again thanks if you made it this far and we hope that someone somewhere can give us some sound advice.

sangie595 · 4 October 2016 at 10:14PM

Sorry - you tried hard, but I have to ask a question. It probably won't make a difference in the end, but does "so basically zero hour contracts" actually mean definitely zero hours contracts, or are you guessing that's what they are?

And I would have to observe that the ONLY legal requirement for a 45 day consultation period is for redundancy. Nothing else. And you also don't have to consult zero hour workers at all - they aren't employees and have no employment rights at all. For them, it is a take it or leave it deal. Nobody has to offer them work, and they don't have to accept work. Which is why I asked the question above.

Also, if there are ANY tenancy type rights, this isn't the board to get advice on that, so bear in mind that there are POSSIBLY two areas of law involved here. I doubt that such tied accommodation as you describe has accrued such rights, but you never know. I certainly don't know! I did find this http://www.rbc-homes.org/choice/uploads/Factsheet_11.pdf, which suggests that there may be some tenancy rights, but I wouldn't rely on just this as it's likely to be more complex - especially if, as I suspect, these are not housing in the normal sense of the word. I say that because in the dim and distant past, in my youth (so very dim and distant) I lived in this sort of place for vacations working whilst at university. And I recall us all making efforts to make it homey, but a hut was what it was!

Employment law wise, I am afraid I see nothing. They have no right to tied accommodation, and nor do they have any right to compensation or living allowances to contribute towards living elsewhere arising out of any employment law (but as I said, there may be other law). And to be honest, the employer does appear to be making an effort that they don't have to. If you are talking zero hour contracts, they can simply say that no more work is available, move out, and tough luck. They can then leave people to sink or swim - if they want to work then there may be new zero hour contracts, but their accommodation is their problem, not the employers. Being on minimum wage doesn't change that - every minimum wage person requires to live somewhere and they have to pay too.

My guess is that despite your understandable cynicism, the company are going to try because they need the workers! Unless they can do with fewer than 400, if this current lot leave, they still need 400 workers. They must find them from somewhere. And I can't see that they don't know that.

I'll have to have a think about this one in terms of strategies, but I do have one off-the-wall suggestion that won't get you rooms, but might help! You say you have no union. That was a choice you all made. Nothing stopped you joining one, and I trust more than a few of you have just realised what a daft decision that was! It is possible - just possible- that a union may take you AND be willing to advise or support you IF you join en masse. 400 members is an attractive foot in the door. But I would have to warn you that this may be something even a union can't do much about. They can only work with what they have got in terms of the law and what members are prepared to do. Representing people who have only just joined is not something unions are willing to do these days, on account of the fact that a lot of people used to do just this and then resign and stop paying their fees once the situation was over. It gets annoying, you understand? But for a large block of members in one fell swoop, you may sell it to a union. Try Unite - they have a tendency to be willing to take risks for gains, and I know we've done this sort of thing before.

Burny_Sweetwater_Glasgow · 5 October 2016 at 10:09PM

Many thanks for your swift response and the fullness of your reply, even if it was not so positive.

You asked about Zero hours contract or rather about my referral to that. Below I have posted what it says in my contract for your info. As an example in January of this year I only had approx 30 hours for the entire month, how does one live on that kind of income, still have to meet any rental costs (well thats if I lived outside the resort, on resort you have you rent deducted through a reduction in you hourly rate, so yes in that month I paid even less rent than usual....rent is only deducted this way for the first 39 hours). I appreciate people will say you're getting a good deal but ......

From my own contract..

Employment Status: the contract contains the entire agreement between the employer and team member and supersedes all previous agreements between the team member and the employer. Your employment is of a temporary nature and whist it is envisaged that it will be for an approximate duration of x weeks, no definitive time period can be specified other than to state that your employment is not likely to continue beyond January 201X or as is otherwise agreed. The employer is under no obligation to provide work to the team member after this time. The company is under no obligation to offer, and you are under no obligation to accept, any further employment at any future time.

Normal hours of work: In normal circumstances your hours of work will be up to 39 hours Monday to Sunday, including statutory breaks as per team handbook, although the company reserve the right to increase or decrease your hours of work, the days on which you are required to work and/or adjust your starting/finishing times as business needs dictate. You will not be paid for any unauthorised hours worked.

For all the contracts this has just been re-issued with new dates year after year.

I know many reading this will make a similar comment that we here have heard often and that is 'you signed the contract so you agree to what it says' and followed by if you don't like it then someone else will take you position...lol.

Again thank you for your opinions and advice, not what we hoped for but appreciate your advice.

One last thing, you mentioned that for our type of contracts there was no legal reasons for such a consultation process to be instigated, any thoughts as to why they would have given a copy of this notification to each of the representatives from each department?

Thanks again.

sangie595 · 6 October 2016 at 7:57AM

Well, for a start off, because unless there is something that you haven't posted here, that isn't a zero hours contract! I appreciate that they may think it is, but it isn't. There's a lot in those few lines that says it isn't, but the biggie is "The employer is under no obligation to provide work to the team member after this time" - in other words, they ARE obliged to offer work up until that end date. And "not likely to continue past" a date isn't a fixed term contract either. Now bear in mind - I cannot see the whole document, and that means that my advice is based on an exceptionally limited few phrases and some information from your first post.... but I am reading (from the employers point of view) a complete legal screw up. Because the contract lacks some things that should be in there ( for example, your right to refuse to work offered hours - which I doubt you have anyway, because the terms of employment and the type of business would make that difficult to allow - who would provide accommodation "for free" if you could refuse to actually do any hours at all?), and includes things that I shouldn't see in a zero hours contract. So, in my opinion, you have a variable hours contract - that means, just like any other contract, except the hours can be varied by the employer. That makes you employees. And it makes anyone with more than two years unbroken service having employment protection!!! That would make this an entirely different ball game. For some of you, at least, this probably constitutes a potential redundancy situation, since the accommodation is contractual. And I suspect they know this and are being very, very naughty in not telling you that.

That little gem of information comes free, courtesy of UNITE. Now do you see why you should have all been in a union????

That doesn't mean that much of what I said before changes. But it does suggest that you have a lot more rights here than I thought you would. And it explains the 45 day consultation procedure, which was always the bit that I didn't understand them doing. In the end, this change will be justified by business need, so you can't stop them. But a case could be made that accommodation is a part of an employment contract, and that accommodation has a value, so this entails a significant contractual change in monetary terms. If they were zero hour contracts, you couldn't have done that. A significant change of this nature is potential redundancy, and now you have a stronger hand to play.

Because they still need 400 staff. And they also probably don't want to have a whole load of unfair dismissal claims against them.

I have a busy day today, so I have to leave it there, and I need to think some more about this. But before I go - you have strength in numbers IF you all stick together. That might help. You aren't going to get an astonishing victory here, but it is possible you might be able to wring a lot of small concessions.

And yes - you DID sign the contract. And yes, there will be a lot of others who are willing to take the job. Those things are true. In the end, it is what it is, and you can't get away from that.

BTW - I am going to nip over to the benefits board and ask them to have a look at this thread, because the thing you haven't thought about is that you may be entitled to housing benefit to help with rent in the local area... every little bit may help.

Burny_Sweetwater_Glasgow · 7 October 2016 at 7:40AM

Thanks again for your quick response.

To help clarify things further here is some more info taken from the contract.

All the other clauses are standard clauses but these are the pertinent ones.

The contract is called

Team Member Single Engagement Contract

1. Issued In accordance with The Trade Union Reform & Employment Rights Act 1993 and The Employment Rights Act 1996.

10. NORMAL HOURS OF WORK: In normal circumstances your hours of work will be up to 39 hour. Monday to Sunday, Including statutory breaks as per the Team Handbook, although the Company reserves the right to Increase or decrease your hours of work, the days on which you are required to work and/or adjust your starting/finishing times as business needs dictate. You will not be paid for any unauthorised hours worked.
Should a change In working hours be required, the Company where possible, will give you reasonable notice of any change. In extraordinary circumstances. where a reduction in hours is necessary, 24 hours prior notice shall usually be given. Should you wish to vary your hours of work, you should reach prior agreement with your Team Manager. Any hours worked in excess of your normal hours will be classed as overtime. Any overtime will be paid at your normal hourly rate. Your normal working week will be based on 6 days per week, and due to the nature of our business you are required to work weekends and Bank and Public Holidays when rostered to do so. You will be advised of your weekly rota In advance. The Company operates a Voluntary Opt· Out Agreement of the 48·hour working week average limit. The reference period when calculating 48 hours Is 52 weeks. Further Information may be obtained from the Team Handbook. Should you wish to opt out please sign the appropriate section at the end of this document.

11. ACCOMMODATION: The Company will provide you with living accommodation (‘Accommodation’) , subject to the terms and conditions of an Accommodation Agreement which you must sign before occupying the Accommodation. The benefit of the Accommodation has a daily value (‘the Accommodation Benefit') which counts as pay for the purpose of the National Minimum Wage Regulations ("the Regulations"). The dally value of the accommodation benefit wilI increase each year In line with the national minimum wage. In signing the agreement you agree to accept this Increase without prior notification should the Increase occur during your SIngle Engagement Contract.
12. RATE OF PAY: Your pay will be al an hourly rate of £x.xx _ (‘Rate 1') for the first 39 hours worked in each week and thereafter £x.xx (rate 2) per hour for each additional hour worked In that week, which together with the Accommodation Benefit and for the purpose of the Regulations is equivalent to a rate of at least (Rate 2) per hour. Payment will be made fortnightly In arrears by BACS payment directly Into your nominated bank account. normally on a Friday, unless a Bank or Public Holiday falls on that day.

Hope all that makes sense.
At a meeting held yesterday they did throw in the fact that there is other resorts that maybe we could transfer too that have onsite accommodation.......trouble is they are several hundred miles away.:rotfl:
Thanks again

sangie595 · 7 October 2016 at 8:05AM

That is definitely not a zero hours contract. In fact, I would go as far as saying it is the darnedest daft contract I have seen in a very long time! Definitely a variable hours contract, definitely an employee contract, and definite that anyone with this contract and more than two years unbroken service has employment rights. And very likely that this is a potential redundancy situation for those with more than two years service.

I can't help on the tied accommodation bit because I am afraid my organising area never deals with it, so it is a long way outside my field of experience.

Past that, I really have wracked my brains, and I don't know what else I can advise. There is strength in numbers, but even that has limits - especially if you are not going to be willing or able to use those numbers. If a union will take you, do it. Or you could club together and get some legal advice - but this isn't a straightforward area of law, so you may struggle to find someone who can advise on the range of issues.

I'm afraid that I can't really think what else you might do - but I will come back and tell you if I think of anything. I did show your post to some colleagues, but they were equally stymied. Sorry. Wish I could do more, but I can't think of anything.

pmlindyloo · 7 October 2016 at 9:59AM

As regards the accommodation it would be useful to see the wording of the accommodation agreement.

The OP and colleagues might do well to contact Shelter as regards this aspect.

Mr_stoke · 8 October 2016 at 11:17AM

I'm having issues at work not sure if I'm in the right place to ask my question but here goes.
I have recently been told to stay off work due to the managent not being able to find holiday cover for a colleague I usually work with .i have been told I will be paid £25 a day whilst I am off but my hours on my contract are 40hrs per week.
Surely this is wrong as I am able and willing to work .

paddedjohn · 8 October 2016 at 11:35AM

If you are laid off due to no work through no fault of your own you are due your normal contracted pay.

sangie595 · 8 October 2016 at 11:58AM

Not if the contract allows for lay offs, in which case the employer can lay off on the basis of guaranteed pay, which is a maximum of £26 per day.

sangie595 · 8 October 2016 at 12:00PM

Mr_stoke wrote: »

I'm having issues at work not sure if I'm in the right place to ask my question but here goes.
I have recently been told to stay off work due to the managent not being able to find holiday cover for a colleague I usually work with .i have been told I will be paid £25 a day whilst I am off but my hours on my contract are 40hrs per week.
Surely this is wrong as I am able and willing to work .

Can you check your contact? Does it allow for lay off? Because this is not necessarily wrong in law. Also, how long have you worked there?

Advice from Employment Law Gurus please

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