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

ilovebanksMCMLXXXI

Hi

I am no expert in this field but so employ several people, have a HR Manager and Personnel Advisor.

Check your husband's contract of employment because there can be clauses that state that if an employee refuses to, or cannot work in a way that allows the company to operate at maximum capacity they no longer have the ability to carry out their role - that can be grounds for immediate dismissal.

Again, I'm no expert and please excuse the wording I've used but without question, there are some very 'odd-ball' clauses in employment contracts.

You have to remember that whilst contracts are there to safeguard employees, they are written up by the employer who will always look to take care of their best interests wherever possible.

Also, if Company A was dissolved and Company B began in April 2010 then your husband has only been employed by Company B since April. Therefore as he has been employed for under 12 months he can be dismissed.

Sounds like there are definitely some grey areas for your to explore - I would start by reading his contract word for word.

Best of luck

ceridwen

ilovebanksMCMLXXXI wrote: »

Also, if Company A was dissolved and Company B began in April 2010 then your husband has only been employed by Company B since April. Therefore as he has been employed for under 12 months he can be dismissed.

Sounds like there are definitely some grey areas for your to explore - I would start by reading his contract word for word.

Best of luck

I would second reading that contract carefully.

I would not think it likely though that he has swung from being initially employed by Company A to now (as from April 2010) being employed by Company B. If they have not given him anything specifically stating that words to the effect of "Your employer from henceforth will be Company B and your employment with Company A has ceased" then I dont see how they could have "swopped his employer".?????

Even if they have done some sleight of hand surreptitiously - then I would imagine TUPE Regulations would apply (ie those regulations usually used when a bit of a public sector workforce is privatised over to an outside firm), I doubt that is the only circumstances in which TUPE applies - it might apply to swopping from one private firm to another (I think it probably does). I dont know the gist of TUPE Regulations - so you would need to check them - but I would imagine, at the very least, they would specify that employees retain "continuity of employment" and therefore if he loses his job that his payoff would be based on his full length of service. They cant just whip "length of service" off you if you are still in the same job and have been so all along.

Re your comment that he sometimes has to do long days on particular occasions - thats as maybe - but the 48 hours specified under the Working Time Directive are averaged over a certain number of weeks (think its 17? you would need to check that) and that takes account of any odd work patterns (eg someone working 60 hours one week and 36 the next for instance would be covered for having done an average of 48 hours on each of those 2 weeks IYSWIM).

BTW - I would imagine I am telling my grandmother to suck eggs here so to say (as your husband took the precaution of recording that conversation that time - which may or may not be admissible evidence) - but I presume he is keeping a Diary of Events - ie a specific record of what is happening/who said what/etc and the day and time of things (written asap after the event). Now THAT definitely IS admissible evidence. (Don't forget to include that job advertisement - if he doesnt have it any more then he'll have to take a photocopy of the archives of someone who does still have the newspaper concerned - eg your local library might have it.)

SarEl

Ceridwen is entirely correct - your employment cannot simply be swopped around like that. You cannot depend on ACAS - in the end they will do what is right for ACAS (which is to broker a settlement at all costs becasue it meets their targets - which may not be the best deal you can get), and their legal advice is often dodgy (that is not their job, no matter what people think!). You should get a solicitor, preferably one with employment law experience. You may have access to legal advice under an insurance policy, or may be able to get a no win fo fee (read the contract for this carefully though!). No matter what the employer now says, you do have that tape, and even if the tribunal would not accept it, as I said before, it exists in their minds - there is absolute evidence that the employer lied. However, a good lawyer won't need to let it go that far - what happens outside the tribunal (i.e. before one) doesn't have to abide by the same protocols, and I would use the tape to hammer the employer and force a deal.

ceridwen

SarEl wrote: »

Ceridwen is entirely correct - your employment cannot simply be swopped around like that. You cannot depend on ACAS - in the end they will do what is right for ACAS (which is to broker a settlement at all costs becasue it meets their targets - which may not be the best deal you can get), and their legal advice is often dodgy (that is not their job, no matter what people think!). You should get a solicitor, preferably one with employment law experience. You may have access to legal advice under an insurance policy, or may be able to get a no win fo fee (read the contract for this carefully though!). No matter what the employer now says, you do have that tape, and even if the tribunal would not accept it, as I said before, it exists in their minds - there is absolute evidence that the employer lied. However, a good lawyer won't need to let it go that far - what happens outside the tribunal (i.e. before one) doesn't have to abide by the same protocols, and I would use the tape to hammer the employer and force a deal.

:D Thanks for that..smile on face to start day with:D

ilovebanksMCMLXXXI

ceridwen wrote: »

I would second reading that contract carefully.

I would not think it likely though that he has swung from being initially employed by Company A to now (as from April 2010) being employed by Company B. If they have not given him anything specifically stating that words to the effect of "Your employer from henceforth will be Company B and your employment with Company A has ceased" then I dont see how they could have "swopped his employer".?????

Even if they have done some sleight of hand surreptitiously - then I would imagine TUPE Regulations would apply (ie those regulations usually used when a bit of a public sector workforce is privatised over to an outside firm), I doubt that is the only circumstances in which TUPE applies - it might apply to swopping from one private firm to another (I think it probably does). I dont know the gist of TUPE Regulations - so you would need to check them - but I would imagine, at the very least, they would specify that employees retain "continuity of employment" and therefore if he loses his job that his payoff would be based on his full length of service. They cant just whip "length of service" off you if you are still in the same job and have been so all along.

Re your comment that he sometimes has to do long days on particular occasions - thats as maybe - but the 48 hours specified under the Working Time Directive are averaged over a certain number of weeks (think its 17? you would need to check that) and that takes account of any odd work patterns (eg someone working 60 hours one week and 36 the next for instance would be covered for having done an average of 48 hours on each of those 2 weeks IYSWIM).

BTW - I would imagine I am telling my grandmother to suck eggs here so to say (as your husband took the precaution of recording that conversation that time - which may or may not be admissible evidence) - but I presume he is keeping a Diary of Events - ie a specific record of what is happening/who said what/etc and the day and time of things (written asap after the event). Now THAT definitely IS admissible evidence. (Don't forget to include that job advertisement - if he doesnt have it any more then he'll have to take a photocopy of the archives of someone who does still have the newspaper concerned - eg your local library might have it.)

Hi

If Company A has been dissolved it no longer exists; you cannot be employed by a company that has been dissolved (it no longer exists so there is no job there).

When Company B was formed it should have issued new employment contracts.

Without question ACAS will be able to help more than me on this one.

Best of luck

Britwife

Thanks again, you all have been so helpful.

My husband's pay stubs are still from company A and not from company B. Also, he was never given a contract when initially hired, everything was verbal and there were no terms and conditions and no employee handbook. The main boss rarely puts anything in writing. Company A still exists and even on their website, the contact number and fax is for the office where my husband works. I feel they are just now using this change to a new company to force the employees to work these long hours. To be honest, there is no real maybe or if in the hours, they will push every hour out of you.

There has always been Sat and Sunday work since my husband started with company A and has performed the same duties with both Companies. They have always had part time staff and then freelancers to cover the work. However, to cut costs, they let go of all the freelancers. To cover all their duties, they have decided to up all the working hours and not pay for any of that. Don't get me wrong, I'm all for companies to earn a good profit but don't bleed your employees dry to do it. The average working week pretty much anywhere is 40 hours and my husband was willing to give them 48 and Saturdays and that wasn't good enough for them. They expect you to work how ever many hours are needed. My husband is a big family man so spending time with me and our 3 children is very important. We also want to respect our Sundays due to our faith. None of this was a problem before.

We are going to see what we can do to find the employment add but it was also mentioned to my husband that the AMD was going to hire her retired father to do the IT work. My husband was never hired to do IT work for Company A, it was to complete AV boxes and maintain and repair them and photography. He's done quite a bit of travelling for photography work and was away last Monday and Tues doing exactly that. On the new contract it says he will be an Account Manager which means he will be doing the same exact job as he is doing now. For some reason she thinks that my husband was employeed to do IT work and that is not the case, he only assisted in 2 IT jobs over the 3 years and that was just done this year.

Also, in this new contract it has his salary £2500 more than what he has been getting paid yet he has supposedly been working for this company since April 1. I'm sure it means they are offering him more to get him to come back but when you look at the contract it just looks as though they have been underpaying him since April 1.

And they didn't even have my husband's contact details on file, they had to ask his brother for our address.

There are 4 employees being hit with these contracts and we think only 1 of them will sign it. The one that will sign it is actually banned from 2 contract companies which is another reason more work on the weekends is being unloaded onto the others. I certainly wouldn't employ someone that two of my clients have banned from their premises.

They are also putting all financial responsibility onto the employees for any company loses. For eg. my husband and his brother were away and were given 4 recording boxes to take. While away, AMD's husband was in charge of getting an event together that Tuesday. Didn't do this and has put the blame onto husband's brother since they lost alot of business because the work wasn't done. According to the new contract, they can deduct these costs from their pay packets.

And the wording about the hours, if you sign it, then you are already agreeing to working more than 48 hours a week and an opt out won't be necessary.

The reason these meetings have been recorded is because they don't bring anyone else in to listen on your behalf.

SarEl

Britwife wrote: »

The reason these meetings have been recorded is because they don't bring anyone else in to listen on your behalf.

They don't have to. It is your responsibility to take a union offfical or a work colleague. A good reason to be in a union. Another one would be that you get free legal advice!

elfen

Just noticed what Britwife said about religion...Are you practising in this religion? Has your hubby mentioned it to the company before that he can't work Sundays due to his religion? As if he has, and can prove it, this may be a case of discrimination, especially with the disputed day being a Sunday?

ilovebanksMCMLXXXI

You really do need to contact ACAS because their are so many grey areas.

For instance, commencing work with no formal contract of employment is never a good thing because you can become legally binded to a whole number of things without realising

Britwife

Hello again, I updated in the original post at the bottom.

thank you all