Query about status and employment terms

kernowayr

I have been working (continuously) for the same employer for 11 plus years now. Last summer the company moved to smaller offices and drastically trimmed back the number of staff, making several people redundant. I was once of those made redundant. I was, however, verbally offered a new temporary contract, reviewable in September 2009, on idential £ terms save for the fact that my contractual hours were reduced to 21 hours (over 3 days) - nothing was ever confirmed formally about the arrangement in writing and I am still working there (although now 28 hours over 4 days most weeks, the 4th day being paid as overtime at basic rate).

My questions:-

1. Has my employer committed an offence of some sort by not providing me with a written statement of my terms of employment (contract?) within 2 months of the arrangement (a) being commenced (b) the September 2009 review date - if so, what can I do about it?
2. What minimum annual leave am I entitled to by Law? Whilst I accept this should be pro-rata do I base it on 4 day week or 3 day week only. Previously I had 25 days plus bank holidays for full-time 5 day week under my original f/t permanent contract which lasted a week less than 10 years in total by the termination date. My redundancy payment was calculated accordingly.
3. What minimum period(s) of Notice am I entitled to/entitled to give should I find alternative employment elsewhere.
4. Do I qualify for SSP as normal under the current arrangements?
5. If I can stretch the arrangement out a bit longer, when will my magic "2 years" service under current arrangements kick in? i.e. 1st July 2011 or 1sdt October 2011?
6. Will I then quality for a redundancy payment again, should the need to make me redundant arise and will this be based on 3-day or 4-day week?
7. How long should I let things run on for before broaching a pay rise to cover for increased travel costs, particularly as petrol is going up so much and no contribution is being made currently towards these expenses nor the general running of the car, which I simply could not get to this location if I did not have any more. Although I don't think there is a lot of cash available for such things as pay rises for staff at moment, the overheads the company has are now greatly reduced, mainly through reduced wages and no rent charges (it is an office situation as we work from a building owned outright by the boss's family company so do not pay much for its use, only for services).

This employer has never really put H.R. and/or employee satisfaction anywhere near the top of her list of priorities all the time I have worked for her although has always been reasonably generous towards me when it came to pay rises etc. in better times (when she finally got around to it, never back-dating though!) and I therefore don't want to "rock the boat" before first checking my facts and thus run the risk that she will turn around and say I've now overstayed my welcome and get rid of me subject to any minimum notice period/payment as intimated above.

Your views on any of these points would therefore be most welcome in the circs. described. Thanks in advance for any help you are able to give me.

MrsManda

kernowayr wrote: »

1. Has my employer committed an offence of some sort by not providing me with a written statement of my terms of employment (contract?) within 2 months of the arrangement (a) being commenced (b) the September 2009 review date - if so, what can I do about it?

If you have been working for longer than one month, you should receive a ‘written statement of employment particulars’. Your employer has a duty to give you this within two months of you starting work. It still applies even if you will only be working for them for two months.The statement sets out in writing some of your main employment terms, known as the 'principle statement'. It will not necessarily cover all of your employment terms and may cover only the ones your employer has a duty to include. www.direct.gov.uk

I think the best thing to do about it is to contact your HR department and possibly contact ACAS for advice.

kernowayr wrote: »

2. What minimum annual leave am I entitled to by Law? Whilst I accept this should be pro-rata do I base it on 4 day week or 3 day week only. Previously I had 25 days plus bank holidays for full-time 5 day week under my original f/t permanent contract which lasted a week less than 10 years in total by the termination date. My redundancy payment was calculated accordingly.

5.6 weeks is the minimum and works out about 12.07% of the hours you have worked. As you're on a different contract to prior to your redunancy I don't think what you received previously is relevant though I may be wrong

I haven't a clue about any of your other questions, sorry.

getmore4less

How long after you were made redundant did you start the new role?

The break needs to be at least a week to break continuity of employment

What redundancy did they pay you(all payments holiday/notice etc)?
Was notice done correctly for the 10years service if 9 weeks notice took you over then you have 10(even if PILON).


If there was no break then I think you may still have continuous employment which will be a shock for the employer if you can make it stick and they want to make you redundant again or any other service related benifits.

I think you may still be on your previous T&C with the only change the hours worked and as a result holidays.


As to current holiday pay etc, you should get holiday for the full working hours.

If the overtime hours are not optional then they should pay those as well, so can you turn down the "overtime" when you don't want to do it.

If you can then they might be able to do contractual it is not clear in the regulations(As far as I understand them).

Note if there are still full time employees getting 25+8BH then you should get them prorata allthough there are 5 contractual days so the rules for these can be different to the statutory days.

kernowayr

There is no H.R. Dept. to contact - comments noted re. ACAS though, cheers!

kernowayr

5.6 weeks is the minimum and works out about 12.07% of the hours you have worked.

Thanks for this also.

kernowayr

How long after you were made redundant did you start the new role?

Straight away - i.e. no break (but I have nothing in writing other than my payslip(s) then and since to back this up). I do have a letter confirming my termination date under old contract of 30th June 2009 though. Correct Notice was served btw and thus I had to accept a redundancy payment based on 9 years' service rather than 10 - at a cost of £575 to me which, of course, I have made up in overtime payments alone since. This is therefore proabably a dead issue by now but, clearly, would not wish to be taken advantage of (again) in a similar way in the future.

The break needs to be at least a week to break continuity of employment. If there was no break then I think you may still have continuous employment which will be a shock for the employer if you can make it stick and they want to make you redundant again or any other service related benifits.

That's why I think it would probably be in my best interests to work under current arrangements for 2 years before challenging them. By that time I would, surely, have qualified for redundancy again. If the business was to fail in the meantime then, presumably, I would lose out but better that than be terminated for asking something I probably already know the answer to or can, at least, find out the answer to without involving my employer.

I think you may still be on your previous T&C with the only change the hours worked and as a result holidays.

Again, I am not sure about this but do, of course, hope you are right which means that, as a minimum, I am entitled to 3/5ths of full-time basic leave (12 of a possible 20days) plus bank & public holidays or, at best, 4/5ths of full-time basic leave (16 of a posssible 20 days)again plus bank and public holidays, to compensate me for the fact that I am regularly working 4 days a week (28 hours) now rather than the 3 days (21 hours) I verbally agreed to do at the outset and am being paid accordingly for 28 hours a week, albeit all of this time is paid at basic time rate, not time and a half for part of it or anything.

kernowayr

If the overtime hours are not optional then they should pay those as well, so can you turn down the "overtime" when you don't want to do it.

If you can then they might be able to do contractual it is not clear in the regulations(As far as I understand them).

I don't consider the 7 hours overtime I am doing each week "optional" at the moment as I can see that the needs of the business demand it which is, presumably, why my employer is allowing the arrangement to continue and continues to pay me for working the extra day. In fact, 4 days per week is not really enough some (most) weeks as the employer is really asking for a 5-day week job of 1.5 persons to be done in 4 days by 1 person so there is no opportunity for slippage and it is extremely easy to "get behind" with the work as a consequence.

kernowayr

That said, if I was in any given week not available to work an extra day (such as this week when I was poorly on the day which would have been my extra day anyway) I did not work and will, therefore, not be paid for that day in my next pay cheque.

kernowayr

I do still expect to be paid for 3 days (21 Hours) as normal as I did work Mon/Tues and Fri was a Public Holiday - if it hadn't been a public holiday and I was too sick to work I would expect to be paid for it anyway as is customary practice at the firm over the 10+ years' I have been working there for everyone, not just me who, incidentally, has exercised that option extremely infrequently (which probably explains again why I was kept on after the redundancy, albeit part-time). It does irk me though that the other two full-time employees of the firm get paid for 35 hours week in week out whether they're (a) at work (b) sick (c) on annual leave or (d) the office is closed for a Public Holiday whereas the most I can expect is 21 hours' worth of pay over the same weekly time period for doing similar work.

kernowayr

So to recap .........

I work 21 hours per week under a "verbal only" contract - only documents are my pay slip which confirms my employment there still and (presumably) after next month, my P60 tax statement for the year confirming earnings, tax and N.I. deductions made whilst in that employment.
I work 7 extra hours per week (most weeks) and am paid for that time at basic rate over and above my 21 hours.

If there is any week I am not able to work the extra 7 hours I simply do not claim for them (& effectively drop a day's wages that week), whether that is for reasons of being sick, on annual leave or whatever
The full-time equivalent annual leave allowance in this firm, for everyone employed there, is 20 days plus bank & public holidays (minimum) for 35/37.5 hours, depending what people have signed up to do, with an extra day for each completed year of service up to a maximum of an additional 5 days.
Under my previous Full-time contract I was on the maximum 25 days leave plus Public & Bank Holidays by dint of my lengthy service there.
Redundancy was the reason for my change in working arrangements.
There was, however,. no break in service as such from full-time (35 hours) contract to new (21 hours plus 7 Hours regular overtime) arrangement but this has never been set down in writing and agreed between myself and my employer contractually on either side.

My own view is ........

By status definition I am still EMPLOYED rather than a WORKER or SELF-EMPLOYED (primarily based on the fact that my wages are paid to me monthly nett of tax and N.I. at usual rates and i cannot send someone else to do the work required for me, even on days I am indisposed/not available personally to do it)

Annual Leave entitlement is largely open for negotiation but, based on what everyone else gets (& what I got myself historically under the previous F/T contract) must be at least the MINIMUM prescribed by Law calculated pro-rata.

I believe my pro-rata entitlements should be calculated based on a 28 hour week (rather than a 21 hour week only) given that this is the number of hours I am regularly working there.

I further believe that I have no lawful entitlement to be paid for the extra day (7 Hours) in any week I am not available for work due to sickness, annual leave etc. even though that would seem to be at variance with the statement made above.

Finally, I believe that once I have been employed under 21 Hours contract for a period of 2 years I will automatically become entitled once more to REDUNDANCY based on that period of service should there be a reason for employer to make me redundant again after that date.

Until then I am better off "keeping Schtum", not rocking the boat too much re. T&Cs, and seeing what happens - keeping my fingers tightly crossed that the company does not "go under" in the meantime (always a possibility in the current climate).