Advice from Employment Law Gurus please
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Sorry but no. Such things are common and easily defended. The only grounds of challenge would be if, for example, a woman was paid less because she is a woman. This is not the case here. They will simply say that these days it costs more to attract the right staff.Burny_Sweetwater_Glasgow wrote: »Apologies that was just a post made as a reaction to the frustration of all these hard working people.
So what you are saying is that a person can be offered the exact same contract of employment but be paid completely different rates of pay!
Surely that cannot be seen as fair and just. Would not an existing employee with more than 2 years service have NO recourse under existing employment legislation to be paid the same rate for exactly the same role? Would there not be grounds to go to a tribunal for constructive dismissal?0 -
Well to sum up how I see things at this point. If I have understood all your kind advice.
We have a contract of employment which is not a zero hour contract for definite.
Anyone whose contract terminated on a specific date and then had a new contract issued which may have had a break and although maybe not working during that specific period did not have to move out of their accommodation will be treated as if they have been in continuous employment which would be an important factor for all with 2 or more years of service.
Its confirmed that no one is entitled to the same rate of pay for having the same contract and responsibilities.
Also we would have been in a better position had we all belonged to some union.
The position here is that on this coming Monday our reps are attending the 3rd meeting at which the management are hoping to come to an agreement as to who/what jobs should be offered accommodation in the properties they have purchased (at this point they have said they cannot disclose any of the properties, except the one we all knew about last month). Also to discuss any feedback from those that may not be offered somewhere (the numbers of these is declining as more and more people decide they are not going to hang around and be treated like this (which is a real shame as they were good and loyal workers).
Also on that point regarding feedback from staff, one of the reps was summoned to see head of HR and basically got his wrists slapped. Reason being is that he has put together a lot of information that really is important stuff for all to understand before they make any hasty decisions (all to do with the costs etc of renting off of resort). He duly shared that with the group he has been representing and also shared all with the other 8 reps. As we all work/live on the resort and because he has been here 5 years he stopped often to talk to colleagues in other depts. And when he realised that very few seemed to be involved with this process, had not been consulted about their fears etc he took it upon himself to share as much as he could both through conversation and by giving them copies of what he had been putting together for his group. He was told by HR that he represents 1 group so he should not interfere with any of the other groups and that his opinions he should keep to himself in future. This as you can imagine has knocked him quite a lot as he was doing nothing wrong by disseminating info that he had provided to the other reps for them to pass on if they so wished. Just trying to help all make an informed decision, whats wrong with that. I personally do not think HR had any right at all to have done this.
One area which is something I am still trying to really get to grips with is the question of redundancy. Even after a 40 minute discussion with ACAS I am really none the wiser. When would there be a redundancy situation in our situation. From my discussion with ACAS it seemed to be at the point that the employer terminated the existing contract of employment and I assume that the individual said that they were not wanting to take up the new contract. Maybe I picked up what the lady had said incorrectly but looking back through this thread there was a mention > 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.>
Am I right or not, some clarity would be good for us. Time is marching on and the final day of consultation is to be Nov 1st I believe and interviews will commence on an individual basis from the 2nd.
Again thanks for all your help.0 -
The reps need to get together and insist on proper group consultation regarding this potential redundancy situation.0
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Yes I would totally agree with you and need clarification on the 'potential' redundancy situation.
At the very end of the first meeting, the form HR1, the form that was about advanced notice of possible redundancies, was handed out to the reps. When questioned about this form it was played down as I said in my first post.....only issued because of the numbers involved and does not really apply to our staff because of the type of contracts we have!
And to my knowledge nothing about redundancies has been mentioned at any further meetings.
So having read over a copy of that form it states in the section 'Reasons for redundancies '....'May choose to leave if they are not offered live in accommodation'....also it states that there are 201 possible redundancies....also says in section 5 'method of selection for redundancy'......'may choose to leave if they are not selected to get a live in bed space/accommodation'. Section 4 Timing of redundancies.....First 5/01/2017...Last 28/02/2017.
So, please forgive me if I am appearing to be lacking in grey material. Personally I have had a few redundancies in my life but on every occasion the job itself was disappearing! So very clear cut and easy to understand but in this instance the jobs are not disappearing only the contracts are being changed to exclude the clause about accommodation. Yes there will be other changes regarding permanent contracts, annualised contracts however the job itself will still be there.
This is where I really need the help of those that have the knowledge. If any staff member says that they are not willing to accept the new contract simply because of the accommodation clause no longer being included does this mean they are entitled to redundancy automatically or would they have to go down the route of tribunals.
Your help in understanding this is so important simply because if that is the case then the reps need to be fully aware of this so that they can disseminate this (hopefully) to all the staff that are effected.
Please don't think I am trying to find a way that staff can get money out of the company because of what is happening as I can assure you that 100% of those affected do want to remain in the job they have been doing for a long time but they really do need to know exactly where the stand in relation to redundancy.
For my part as I said in an earlier posting, I cannot benefit anyway because I have been here less than the required 2 years but I don't want any of the staff to make what could be a life changing decision, without being in full possession of the facts.
My interpretation from just reading that form is that those with 2+ years of service who decide to say no to the new terms and conditions will be made redundant!
Right or wrong? Can anyone enlighten me in a definitive manner?
Thanks again to all who have contributed to my thread.0 -
It's late, and I have guests this weekend. I'll get back to this tomorrow. There's too much to give a two line answer.0
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Burny_Sweetwater_Glasgow wrote: »Well to sum up how I see things at this point. If I have understood all your kind advice.
We have a contract of employment which is not a zero hour contract for definite. Based on all the information posted here, and the extract of the contract relating to hours of work, then it is my opinion that you have a variable hours contract, not a zero hours contract. That is important because it makes you employees and not workers. The other thing that I would add to underline this is that the employer treats your accommodation (quite correctly) as taxable which makes it part of your wage, and therefore this means that when you are "not working" any hours in a week, you are STILL BEING PAID unless they then charge you rent! And that would also suggest that this would be a breach of the national minimum wage/living wage and / or minimum guaranteed pay regulations.
Anyone whose contract terminated on a specific date and then had a new contract issued which may have had a break and although maybe not working during that specific period did not have to move out of their accommodation will be treated as if they have been in continuous employment which would be an important factor for all with 2 or more years of service. Again, this would be my opinion yes (also see the above - the housing is actually wage because you are taxed on it). In the end you have to understand that the only opinion that matters is that of a tribunal - they make the decisions. But I believe that there is a strong argument on these matters which would lead a tribunal to concur with what I am telling you.
Its confirmed that no one is entitled to the same rate of pay for having the same contract and responsibilities. That is correct - unless the REASON this is the case is because of a protected characteristic such as race or gender. But there appears to be no evidence that this is the case here.
Also we would have been in a better position had we all belonged to some union. It depends on what you mean by that, but yes, I believe so. Unions cannot wave magic wands and make things go away. They can (a) only force an employer to act if they are breaking the law, or (b) force an employer to act by virtue of fear of the consequences - so basically, by sticking together and being willing to take action against the employer. But it does give you access to knowledge, to organising, to representation, and to legal advice and representation if appropriate. Unionised workplaces are usually better than non-unionised ones, generally if not in every respect.
The position here is that on this coming Monday our reps are attending the 3rd meeting at which the management are hoping to come to an agreement as to who/what jobs should be offered accommodation in the properties they have purchased (at this point they have said they cannot disclose any of the properties, except the one we all knew about last month). Also to discuss any feedback from those that may not be offered somewhere (the numbers of these is declining as more and more people decide they are not going to hang around and be treated like this (which is a real shame as they were good and loyal workers). And that is where loyalty often leads. Any decent employer would care about losing people like that.
Also on that point regarding feedback from staff, one of the reps was summoned to see head of HR and basically got his wrists slapped. Reason being is that he has put together a lot of information that really is important stuff for all to understand before they make any hasty decisions (all to do with the costs etc of renting off of resort). He duly shared that with the group he has been representing and also shared all with the other 8 reps. As we all work/live on the resort and because he has been here 5 years he stopped often to talk to colleagues in other depts. And when he realised that very few seemed to be involved with this process, had not been consulted about their fears etc he took it upon himself to share as much as he could both through conversation and by giving them copies of what he had been putting together for his group. He was told by HR that he represents 1 group so he should not interfere with any of the other groups and that his opinions he should keep to himself in future. This as you can imagine has knocked him quite a lot as he was doing nothing wrong by disseminating info that he had provided to the other reps for them to pass on if they so wished. Just trying to help all make an informed decision, whats wrong with that. I personally do not think HR had any right at all to have done this. But actually, they do. Because they make the running on what can and cannot be disclosed when the reps "belong to them". Now if that had been a union rep, HR would have been told where to go and what to do when they got there - union reps have legal rights and protections that nobody else does. Threaten a union rep and you are inviting a whole load of c88p to descend upon you from a great height.
One area which is something I am still trying to really get to grips with is the question of redundancy. Even after a 40 minute discussion with ACAS I am really none the wiser. When would there be a redundancy situation in our situation. From my discussion with ACAS it seemed to be at the point that the employer terminated the existing contract of employment and I assume that the individual said that they were not wanting to take up the new contract. Maybe I picked up what the lady had said incorrectly but looking back through this thread there was a mention > 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.>
Am I right or not, some clarity would be good for us. Time is marching on and the final day of consultation is to be Nov 1st I believe and interviews will commence on an individual basis from the 2nd.
Again thanks for all your help.
The situation with redundancy (and please be cautious with ACAS phone lines - most of their employees advice is rubbish and they are less well trained than you are!) is that the minute they declared a consultation to change the terms significantly, you were all "at risk". Remember, this is my opinion - only a tribunal can decide it is the case. I believe they have confirmed this in action (group consultation and then individual consultation) whilst avoiding the word because they want you to roll over and not realise that you may have some rights here. If they continue to act without using the actual words, you are made redundant on the day that they issue you notice to significantly change your contract, and then serve a notice period before your actual date of redundancy.
OR this would fall under unfair dismissal legislation, in respect of the fact that they would serve you notice of new contractual terms which you may take or leave. If you take them, then your contract changes. If you leave (AND if you have made it clear by raising a grievance that you believe this to be unfair) you are entitled, after two years service, to claim unfair dismissal on the grounds that the change in contractual terms is so great that it was unreasonable to expect you to accept it.
The situation that you are in is hazy, not in terms of having rights, but determining which apply, because the process isn't finished AND because your employer is being coy and playing fast and lose with the language and process.
Is there anything in that that isn't clear?0 -
Burny_Sweetwater_Glasgow wrote: »Yes I would totally agree with you and need clarification on the 'potential' redundancy situation.
At the very end of the first meeting, the form HR1, the form that was about advanced notice of possible redundancies, was handed out to the reps. When questioned about this form it was played down as I said in my first post.....only issued because of the numbers involved and does not really apply to our staff because of the type of contracts we have! HR1 is a LEGAL REQUIREMENT. Employers do not hand them out if they are not applicable. Your employer knows damned well that they are required to do this because you are not on the type of contracts that they thought you were on. They screwed up. And probably their lawyers have now told them this. THAT is why they have issued HR1
And to my knowledge nothing about redundancies has been mentioned at any further meetings.
So having read over a copy of that form it states in the section 'Reasons for redundancies '....'May choose to leave if they are not offered live in accommodation'....also it states that there are 201 possible redundancies....also says in section 5 'method of selection for redundancy'......'may choose to leave if they are not selected to get a live in bed space/accommodation'. Section 4 Timing of redundancies.....First 5/01/2017...Last 28/02/2017.
So, please forgive me if I am appearing to be lacking in grey material. Personally I have had a few redundancies in my life but on every occasion the job itself was disappearing! So very clear cut and easy to understand but in this instance the jobs are not disappearing only the contracts are being changed to exclude the clause about accommodation. Yes there will be other changes regarding permanent contracts, annualised contracts however the job itself will still be there. OK. I need to explain to you what a "job" is. A job is a collection of duties AND all the terms and conditions that go with that work. So it is a package. The accommodation is part of that package. Taking that away means that the "job" has changed, even if everything else stays the same. Hence, the redundancies... Do you understand that now?
This is where I really need the help of those that have the knowledge. If any staff member says that they are not willing to accept the new contract simply because of the accommodation clause no longer being included does this mean they are entitled to redundancy automatically or would they have to go down the route of tribunals. Assuming they have two years service, then they have the right to redundancy IF it is a redundancy. This is where is gets complicated. The employer can offer them another job - say, the same job but without accommodation. If they take that, they are not redundant. If they refuse then either the employer gives them redundancy pay, or the employer argues that the alternative job offered is a suitable alternative job, and refuses to pay out. In the latter case the employee would have to go to a tribunal. Or would have to go to a tribunal if the employer argued their contracts didn't entitle them to redundancy and they argued they did have a right. In the end "automatic" isn't the same thing as getting it without a fight!
Your help in understanding this is so important simply because if that is the case then the reps need to be fully aware of this so that they can disseminate this (hopefully) to all the staff that are effected.
Please don't think I am trying to find a way that staff can get money out of the company because of what is happening as I can assure you that 100% of those affected do want to remain in the job they have been doing for a long time but they really do need to know exactly where the stand in relation to redundancy. If they are entitled to get money out of their employer, why shouldn't they? And actually, I hope they do because this employer is clearly attempting to pull the wool over their eyes and hope they won't notice. The employer is a liar!
For my part as I said in an earlier posting, I cannot benefit anyway because I have been here less than the required 2 years but I don't want any of the staff to make what could be a life changing decision, without being in full possession of the facts.
My interpretation from just reading that form is that those with 2+ years of service who decide to say no to the new terms and conditions will be made redundant!
Right or wrong? Can anyone enlighten me in a definitive manner?
Thanks again to all who have contributed to my thread.
Your interpretation is correct in that the evidence suggest they should be made redundant - but the employer is clearly hoping that they won't notice and just buckle under or go away. It would be worth reading up on the law around suitable alternative employment, which is when an employer offers another job that is similar(ish) to the job that is redundant. Because this can get the employer out of redundancy payments. HOWEVER, I would watch those new contracts like a hawk, because I will bet that they attempt to make them into zero hour contracts now that they realise they have screwed up. Accept that change and you will have no rights. And that change would never be accepted as a suitable alternative, when it strips away your employment rights.
Again, does that all make sense?0 -
I think the reps should get together and formally complain that the consultation has not been meaningful
insisting they need to restart properly resetting the clock or extend the consultation as it clearly cannot be complete as the company and HR are complicit it divisive and deceptive tactics and have been interfering with the reps.
The reps should ask for redundancy terms to be issued before the consultation is completed as that is key information for anyone considering there position.
There is probably other choice words that could be included "suitable alternative"(as sangie notes above) often triggers a realisation that reps are starting to get the idea of what's really going on..
With the number of people involved a few £ off each would give enough to get legal representation. as this is a big employer in the area there may be some leverage(free) available from a interested community conscious group(lawyers/papers)
edit:
considering it is fairly obvious who the employer is what is the reputation in the area?0 -
Yes. It's my former student days employer! But whilst I don't disagree, it's not that easy for the reps. They have no union backup. They have nobody to advise and support them. And they are very vulnerable.
I still think my first approach would be an attempt at a block union sign up. A foot in this door might be attractive. Attractive enough to forget the qualifying rules for representation.0 -
A national might be interested if there are EU workers involved make it into a Brexit story.0
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