Would this be unfair dismissal? update 11/10/2010

Britwife

My husband was brought into a meeting today to change his working week. Because he refused to work more than 48 hours per week and would not agree to working Sundays, he was made redundant.

He's been there for almost 3 years. He has it on recording that his boss wanted him to work as many hours as his boss said, there would be no time off for any hours over that, the company van that was used to get to these events now required the employee to pay for petrol (these events are quite far and petrol is pricey), and he had to work Sunday's.

My husband told him that the law prohibited him from forcing him to work Sundays and more than 48 hours, I should add that my husband would not be getting a raise. He is paid on a salary and started working there at 40 hours per week and then he was working 48 hours a week for the same pay. Anyway, his boss said on the recording that he didn't care about the law.

My husband was still willing to do the work and give them 48 hours but would not go over that and would not work Sundays.

We do know they were trying to hire another person to do the computer work in the office and was told this was to help out when my husband was off but they just keep my husband out in the field now.

The reason for the change is because another employee is banned from working at 2 sites and one covers a Sunday and they want to get mall work during Christmas which would include Sundays. Yet this employee is still allowed to work there, doesn't make sense.

I'm pretty upset so don't know if I've left anything out. Please let me know and I can get the answers to you and thanks so much for all your help.

Oh, no redundancy pay was discussed. My husband had to leave immediately. The boss has done this to another employee who has to decide tomorrow to take the offer but they are allowing him to not work Sundays. It was also stated to this emplyee that my husband could have the same offer but he would have to shave his very clean short

*UPDATE*

We got word that the old MD who still deals with the company told them they broke the law

So, Tues 5th October, his boss rang him and asked if he was going to sign the new contract (keep in mind he had already been made redundant) and my husband told them no. Then today, the 11th, he gets a text from his brother that they need his address again. So he gives it to them. An hour later, his boss rings and asks if he will come in so they can talk about things and he asked them what do you mean? She said that he is still being paid and is still on the payroll so he is still employed with the company and she wants to make an offer to get him back to work. They want to meet tomorrow. I don't know if this is a good idea. My husband is under the influence of drugs (2 teeth pulled) and the call took us by suprise so he agreed.

I'm sure they will make him a good offer however, there is no trust with this company after all they have done. All they have to do is keep him on for a few months and then figure out a legal way to get rid of him or set him up to be fired and we could be out of benefits. Should he go to this meeting to hear them out or cancel? How do we do this the right way?

Thanks again for all the help on this.

SarEl

You are correct about everything except one thing. Sunday is a working day - except for a limited number of employers, there are no laws now prohibiting Sunday being treated as a normal working day.

First thing to do is to transcibe into written form the recording. Now here is the "health warning". It is not lawful to record someone without their permission (which I assume was the case). It is lighly unlikely that the employer would take legal action over this matter, although they can do so but it also means that no court has to accept this as evidence. There is some employment case law which has opened the door to such evidence being used, but in circumstances where the evidence is "in the public interest" which is not the case with your recording. I cannot therefore guarantee that a tribunal would accept this evidence (and it must be the transcript and not the recording itself - which you should obviously keep anyway), and if they do it could give grounds to an appeal to EAT (although this is probably unlikely).

Then you submit an appeal to the employer (you do not have to do this but if you do not any award by a tribunal will possibly be reduced because your did not) and an ET1 (that's the tribunal claim form) at the same time. In both the appeal and the claim you describe exactly what happened and that the employer unfairly dismissed due to your husbands refusal to opt out of the wroking time directive and accept changes to contract (listing the changes). You do not mention the recording AT ALL.

This is because the employer presumably does not know anbout it yet and you do not want him to. He has to hold an appeal and if he knows that you have this recording he will reinstate you husband and find a way of fairly dismissing him. The employer is almost certainly going to deny your husbands version of events at the appeal - and more to the point, in his response to the tribunal. You want him to do this

Once you have a denial in writing with the tribunal, that is the time to up the ante by making it clear that you have evidence that he is lying. That should rpoduce a settlement offer - if it doesn't, or it isn't reasonable, then it goes to tribunal. There's a good chance that you would win, but obviously that depends on them accepting the transcript of the recording. I am minded to think that by that stage, even if they don't accept it, it will be in their minds that it exists, and they are unlikely to believe the employer. But as I said, I cannot guarantee that.

You need to understand that this is not a quick process. To get to tribunal it can take 6 - 9 months - less if you are very lucky, but don't bet on it. If it gets settled it is still likley to take time. You cannot rush this as you need to "stitch up" the employer by getting his response on official documents, and I somehow seem to think he won't be saying "Oh yes that is exactly what happened, my bad".

In the menatime, if you need to claim benefits, tell the JobCentre the truth. Say that he has been told he is redundant but that it is an unfair dismissal and you are making a tribunal claim. Then if the employer lies to them it is unlikely to impact on his entitlements.

Give some thought to the ET1 wording and your claim - do some research on the internet and cover all the bases. That means "throw in the litchen sink too". If he has no written statement of the main terms and conditions, throw that in; if he doesn't get payslips, throw that in; obviously, if this had been a redundancy, the employer didn't consult either - throw that in. Throw in everything you can. You have three months less a day to make an ET claim - I'd suggest that you get it in as soon as you can, but don't rush it and leave something out (although you can add to the claim later).

Uncertain

SarEl wrote: »

Now here is the "health warning". It is not lawful to record someone without their permission (which I assume was the case). It is lighly unlikely that the employer would take legal action over this matter, although they can do so .....

SarEl

Are you 100% sure about this?

It is my clear understanding that it is NOT illegal to record a conversation that you are party to, even without the other party's consent. By this I mean it is not something for which you could be prosecuted.

Are you thinking of the growing but unwritten "privacy laws" where some judges, well one in particular, seems to be making it up as he goes along?

I would agree it would be illegal to "bug" a meeting at which you were not present but I don't think that is the case here.

I also agree that, either way, it may or may not be allowed as evidence.

shaz-ann

It sounds like unfair dismissal to me.

I presume your husband would have had a contract of employment for this firm? You need to dig it out and check his terms and conditions.

Any major changes such as expenses and a change in working hours have to be agreed in writing by both parties I'm sure.

48 hours is the maximum legal number of working hours each week.

McKneff

How can they make him redundant if the job actually exists.
confused.

Googlewhacker

shaz-ann wrote: »

48 hours is the maximum legal number of working hours each week.

As long as you have not signed out of the WTD.

Lincoln_Imp

Its not 48 hours a week as such ,Its averaged out over a 17 week period
http://www.direct.gov.uk/en/Employment/Employees/WorkingHoursAndTimeOff/DG_10029426

SarEl

Uncertain wrote: »

SarEl

Are you 100% sure about this?

It is my clear understanding that it is NOT illegal to record a conversation that you are party to, even without the other party's consent. By this I mean it is not something for which you could be prosecuted.

Are you thinking of the growing but unwritten "privacy laws" where some judges, well one in particular, seems to be making it up as he goes along?

I would agree it would be illegal to "bug" a meeting at which you were not present but I don't think that is the case here.

I also agree that, either way, it may or may not be allowed as evidence.

Absolutely positive. It is not illegal it is unlawful. There is a difference. Something that is illegal is a criminal offence. Something that is unlawful is a civil offence. Recording someone for your own use only and not for sharing with any other party is lawful - but not sharing it with anyone else. Because it is a civil offence - it is actually a breach of human rights unless is is a telephone conversation, in which case it falls under telecommunications legislation - then that is why I said that it is unlikely that smeone would sue.

However, because it is unlawful, some courts are chary about accepting such evidence if it has been obtained unlawfully. I have known tribunals to accept it - but I have known them to refuse it too. As I said, there have been some EAT cases, which set case law, which have permitted it (including one case where a tape was left running in a room whilst the ndividual was outside it (so "bugging"), but case law is not dependable because the circumstances have to match, and so far the general approach in the higher courts has been that it will be accepted only in exceptional circumstances. It is a huge grey area. I know that some colleagues have told me that Gounty Courts commonly - as is often, not always - accept transcripts, but this approach is not yet (and may never be) the approach of tribunals.

Uncertain

SarEl wrote: »

Absolutely positive. It is not illegal it is unlawful. There is a difference. Something that is illegal is a criminal offence. Something that is unlawful is a civil offence. Recording someone for your own use only and not for sharing with any other party is lawful - but not sharing it with anyone else. Because it is a civil offence - it is actually a breach of human rights unless is is a telephone conversation, in which case it falls under telecommunications legislation - then that is why I said that it is unlikely that smeone would sue.

Thanks for that.

The point I was trying to get over was that it is not a crime, as a lot of people seem to think or choose to imply when it suits them!

ceridwen

Sounds very definitely like an unfair dismissal to me - not a redundancy. The question is whether a Tribunal would agree it is in law. Don't know what the chances are of them doing so...

Meanwhile - it would be worth your O.H. comparing the money they are likely to give him if he just lets them "get away" with calling it a redundancy on the one hand and how much "the going rate" is if he wins at a Tribunal on the other hand.

If he'd get noticeably more money from a Tribunal - then I guess he might as well "see that justice is done". If theres not much in it - or they've thrown in an element of "bribery" to go quietly if they're allowed to treat it as a redundancy - then its a judgement call as to whether to go through the hassle and wait for a Tribunal with the uncertainty as to whether "justice WILL be done" when it comes to it.

He has to weigh up these various aspects and decide which way to play it from there.

...but then I am an arch-pragmatist and in similar circumstances I did the calculations and it turned out that I'd be no better off taking them to a Tribunal than accepting the proferred cheque - so I personally took the view that I wanted to have the matter "off my plate" and dealt with and I would take my chances that I would have an opportunity to follow the phrase "Revenge is a dish best served cold" later .......

So - first and foremost hopefully your O.P. will be able to check out what the likely payout is if he goes to Tribunal and then he can "take it from there" as to what his decision is as to course of action.

Britwife

First, I want to thank you all for the help and advice.

Today, the assistant MD called and left a message for my husband that she wanted to work things out with him. This threw us for a loop and so my husband called Acas for advice. My husband explained the situation and basically, they said he does have a case for tribunal and asked if he was ready to do so. He asked for more advice and it was suggested that he as least hear them out so that he could show that he was willing to negotiate. Acas has said they have broken so many laws by doing what they have done.

So husband called and he asked some questions about why he was made redundant and he was told because his job no longer existed. Then he asked what he would be hired to do and she gave the list. He said, wait a minute, that's what I have been doing for the last year and a half. She argued that no he hasn't and he asked about all the work he has been doing and she said he was just doing to work to save them money. She did tell him that she is posting a new contract to him for review and she said you'll have to trust me on this but if you work 48 hours and you need a day or so where you need to pick up your children from school, you can do that. My husband told her that it would have to be in black and white and that he didn't trust her after yesterday. He did tell her that what happened yesterday was illegal, didn't specify what, but as soon as he said that she said that you would have to take that up with the MD.

So this evening, his brother (he works there as well) brought a copy of the contract and an employee handbook (never had this before) and in the contract, it states:

Your normal hours of work will be 40 hours per week, 9am to 5:30pm Tue to Sat with a 30 min unpaid break. However, your actual hours will be those required to carry out your duties to the satisfaction of the company and as necessitated by the needs of the business. Saturdays will be worked according to the issued rota and as agreed with the Assistant MD and the hours will those required to complete the job to the satisfaction of the company.

They have also included the form for the 48 hour opt out but if you sign this contract, you're pretty much agreeing to that anyway because events are very long days. I should add that they were hired based on a verbal contract.

Her reasoning behind all this is because the company my husband was hired (company A) on to has been dissolved and has been working under the new company (company since April 2010. My husband was aware that there was some restructuring but even after this date continued working as normal. The assistant MD is calling company B new but his business cards since he started had company b on them. His pay stubs still have company A on them and both companies are listed active with companies house and both websites are still active with his office number on both. I suppose none of this matters since they want to rehire my husband to do the same job.

The entire contract is a joke really and I've never seen anything like it. Any staff who sign it is starting employment all over and will be on a probation period and no continuity of employment even though they have always worked for both.

Bottom line is, they let go a bunch of freelancers and now the 4 members of office staff have to take that on with no additional pay. This company is growing fast and they will also be responsible for new contract work meaning more work hours.

I almost forgot, they put an ad in the paper to hire someone to do my husband's job since they put him out in the field. They said they wanted someone in there that could do his job when not there. so again, if his job is redundant why try and hire another. I believe this was in August. Also, don't know if this should be added, but they refused to get safety equipment and my husband was on 2 and 3 story tall buildings without any harnessing or safety equipment leaning over the side. This happened several times and his brother even took a picture because my husband hates heights.

Money isn't our motive for any of this, we're after justice and maybe a slap in the face for his bosses.

Thanks again for all the advice and so sorry this is all so long, just want to give you all the full picture. My husband will get his contract on Monday but will be phoning Acas back to get things going. Is Acas all we need or is this something a solicitor should be doing?