someone help

debtdummy

long story, i worked for a nursery 26/08/08 till 9/12/08 i walked out cos boss went mental shouted things at me infront of staff and children. boss is like jekl and hyde, always being odd and then fine. hated it ,been looking for work elsewhere. come home most days crying, so do all other staff. so i walked out. didnt go back after lunch. took letter in stating i shall not be returning to to humiliation infront of less senior staff and kids.

i went to local citizens advice they said cant claim constructive dissmissal cos only been there 3 months not 12 so they said make sure she pays u the 9 days u worked in december and holiday. i have been on buisnesslink and worked out she owes me 54 hours holiday BUT also states she must pay unless stated in contract. i got my contract after 1o weeks or so and i have refused to sign it from day i got it, i have both copies and there on it claims if u dont work yur notice you dont get accured holiday. i did as citizens advice centre said and going to send a grievence letter stating i am entitled to 54 hours under employment law2006 but will the contract still stand??????? if she refuses can i take her to employment tribunal????

robnye

in short im not sure you can take them to a tribunal, i have a feeling that you needed to be in the job at least 6 months if not a year before you are fully covered -

im sure others will be on to give more advice (or correct mine)

debtdummy

thanks, i have iva and need the holiday pay, i have already got another job so i am doing great there. only thing is iva company wont move payment date back 6 days cos it will show me inarrears. so got to beg dad for money and pay him after, but need this months money and got feelign she wont pay up

pinkshoes

Walking out on a job and refusing to work your notice period is a big no no, especially with nursary work, as you could have jeopodised staff to child ratio rules, which might have meant that they had to turn children away, leaving parents in the lurch (who in turn might have lost out on salary/holiday from having to stay at home).

Why didn't you sign your contract? If you had a problem with it, it was your responsiblity to question it, rather than sit on it and not sign it.

You should be paid for the days you worked, but if your contract states no accrued holiday, then that's what stands.

Your IVA is not their problem, and you should have thought about this before walking out, and dealt with your resignation in the usual calm fashion. Is it too late to go back and work out your notice period?

Everyone has to deal with horrible people, and no matter how nasty this manager was, you handelled it in the wrong way.

Good luck with your new job.

debtdummy

its a small nursery 18 place with 9 staff im well aware of ratios, i would never leave kids with no staff. ive worked in nurseries for 10 years so i was well aware of my actions, i didnt sign contract cos i was looking into holiday entitlement , myself and another member didnt think the amount of holiday was calculated right. i have worked there looking for work since day one. i understand its the right thing to work your notice but in some circumstances this is impossible under circern circustances... hence me gettign advice on constructive dissmissal

Conor_3

debtdummy wrote: »

. i understand its the right thing to work your notice but in some circumstances this is impossible under circern circustances... hence me gettign advice on constructive dissmissal

Lets put it this way. You are in breach of contract whether you signed one or not as the minimum statutory notice period is one week so that's not a get out.

You can't claim constructive dismissal a) because you've not been there a year and b) getting your ear chewed off doesn't count as constructive dismissal.

The employer is perfectly within their rights to sue you for all costs incurred with you not working your notice including, and not limited to, the cost of agency staff to cover your position plus any loss of earnings arising as a result of you walking out.

I would explain to the IVA that you are no longer employed but don't be surprised if their response is to immediately pursue bankruptcy.

glossgal

Hi,
Forget constructive dismissal-for a short length of service there would be no point even trying to make a case for this.

Holiday pay is different, you are owed statutory holidays whether you walked out or not. Not giving notice doesn't cancel out your rights to pay-if employer wants to sue you for breach of contract they have to do that separately. If you only had to give a weeks notice then I can't see how much inconvenience you would have caused in monetary terms anyway?

I would put this in a letter to them.

pinkshoes

glossgal wrote: »

Hi,
Forget constructive dismissal-for a short length of service there would be no point even trying to make a case for this.

Holiday pay is different, you are owed statutory holidays whether you walked out or not. Not giving notice doesn't cancel out your rights to pay-if employer wants to sue you for breach of contract they have to do that separately. If you only had to give a weeks notice then I can't see how much inconvenience you would have caused in monetary terms anyway?

I would put this in a letter to them.

If she chases them for the holiday entitlement, then she risks them suing for breach of contract, and any costs they occured, which could mean she'd end up paying more than she'd gain.

Might be best just to let it go, especially if she has a new job to go to!

glossgal

pinkshoes wrote: »

If she chases them for the holiday entitlement, then she risks them suing for breach of contract, and any costs they occured, which could mean she'd end up paying more than she'd gain.

Might be best just to let it go, especially if she has a new job to go to!

I know what you mean but 54 hours (assuming this figure is right) even at minimum wage is over £300! I think OP has nowt to lose by trying to get this back.

Also employer would have to show financial loss because of OP-which realistically would be what? cost of re-advertising? would have to do that anyway, notice or not. Pay another member of staff a few hours for emergency cover? that probably would be less than the cost of filing a claim against OP so I don't think they'd have much of a case! Tribunal claims cost nothing so i think OP holds the cards on this one

Horace

You haven't been there long enough to claim constructive dismissal. Anyway as things stand you are likely to be laughed out of the Employment Tribunal because you haven't followed procedures - a) you failed to raise a grievance b) you walked out.

You wouldn't be entitled to a full 12 month's holidays either because you were only there for a matter of months. You would only be entitled to the holidays that you haven't taken during the period of employment (do not include Bank Holidays).

Your contract stands because you have agreed to it because you have worked for the period 26 August to 9 December 08 regardless of whether or not you signed it` you have accepted the terms of it. It is your fault that you didnt sign and also your fault for not querying the holiday entitlement.

You have chosen to make yourself unemployed so you won't be able to sign on either at least not for a few weeks or months (Conor will probably say how long because he knows more about signing periods than me).

I very much doubt that your employer will allow you back so you should start looking for another job and pronto bearing in mind your current financial position.

Conor_3

glossgal wrote: »

Also employer would have to show financial loss because of OP-which realistically would be what?

Agency staff fees of £10 an hour or more for a full week or, if they didn't have sufficient cover to maintain the child to staff ratio, the amount of revenue they lost from having to turn children away.

As regards signing on, you can sign on straight away but are likely to be sanctioned for up to 26 weeks meaning you get a reduced amount or nothing at all.