Is it legal??

Animagdon

Hi Guys,

Needing a bit of advice

My OH was made redundant from his position as a computer engineer when the recession hit last year and for the past 12 months has been working as a fast food employee just so we had another income coming in.

We're due our first child in February next year and we've hit a few stumbling blocks with his employer since we told them and quite frankly it's causing us no end of aggro which is the last thing I need in the last few weeks of pregnancy! Hence the help request

He has been requesting a holiday form from his employer since September in order to book some time off work (he has 15 days to take before the new annual leave year begins in January) and they haven't supplied him with one. Now they're telling him that because of the time of year he can't have any annual leave but what they'll do instead is on his rota'd days off they'll pay him a day's annual leave.....but with only 3wks of the year left this will only equate to 6 days out of his entitled 15 and they wont let him carry any days over to next year so he's going to lose 9 days holiday/pay.

He has also been requesting to do the 'open' shift rather than the 'close' so that he can be home for 2pm rather than 11pm and he has been requesting this since we found out about our pregnancy back in July. Today he has been told that they might be able to accomodate this if he opens the store he usually works in a couple of days a week and a store 25 miles away from where we live the rest of the week. He's on minimum wage and we can't afford the fuel and parking costs to the store 25 miles away for more than 2 days a week but they've said take it or leave it. Surely it's not an unreasonable request to change shifts given we're going to have a life changing event happen soon is it?

Also, when he first started he advised that he could not work every weekend and they only had him coming in maybe once every 3-4 weekends but for the last 3 months it's been every week. Another member of staff has now left and my partner has been told that his weekend shifts are to cover for the person that left even though he only left this week and they've had 3 months notice of him going....staffing levels should not be our issue but they're making it out as if they are.

Don't even get me going on the safety of the employees at this store as they've been held up at gunpoint twice in the last 5 weeks and the store owner got angry at the fact that the panic button had been used (it costs £170 to reset it) rather than the fact that the staff had been violated like this and my partner got 4hrs off work as compassionate leave :mad:. Does a franchise have to be open a certain number of hours in order to 'be legal'? I'm sorry, I know this is a lot of questions to be asking but I'm at my wits end and my partner is so depressed over this it's not funny...he is looking for other work but there is so little out there at the moment that he is just getting more and more disheartned with every 'sorry' email that comes back to him.

Any help as always, will be most gratefully received xxx

KiKi

Animagdon wrote: »

He has been requesting a holiday form from his employer since September in order to book some time off work (he has 15 days to take before the new annual leave year begins in January) and they haven't supplied him with one. Now they're telling him that because of the time of year he can't have any annual leave but what they'll do instead is on his rota'd days off they'll pay him a day's annual leave.....but with only 3wks of the year left this will only equate to 6 days out of his entitled 15 and they wont let him carry any days over to next year so he's going to lose 9 days holiday/pay.

Assuming he works full time, he is legally entitled to 5.6 weeks a year, or 28 days (which includes BHs). Pro ratad for PT employees. So if this takes him under his 5.6 weeks' allowance, yes, it is illegal.

If he is contractually entitled to more than 28 days' annual leave, and the loss of 9 days doesn't take him below the legal entitlement, then many companies have a 'use it or lose it' policy, so whether or not they are being fair depends on a) their policy and b) their behaviour. If this is the case then he should put in a grievance outlining his requests since September.

You need to work out what leave he's taken, and what he's legally entitled to (if he's part-time) to know if it's illegal or not.

He has also been requesting to do the 'open' shift rather than the 'close' so that he can be home for 2pm rather than 11pm and he has been requesting this since we found out about our pregnancy back in July. Today he has been told that they might be able to accomodate this if he opens the store he usually works in a couple of days a week and a store 25 miles away from where we live the rest of the week. He's on minimum wage and we can't afford the fuel and parking costs to the store 25 miles away for more than 2 days a week but they've said take it or leave it. Surely it's not an unreasonable request to change shifts given we're going to have a life changing event happen soon is it?

He has a right to request considering a change in shifts and for the company to consider it, but there is no legal obligation for it to be granted. How he gets to work and his fuel costs are not their problem. They've offered a solution; you will have to take it or leave it. You are, of course, having a life-changing event but - and I mean this in the nicest way possible - that's not the company's problem or interest! They don't have to work their shifts around your new baby!

Also, when he first started he advised that he could not work every weekend and they only had him coming in maybe once every 3-4 weekends but for the last 3 months it's been every week. Another member of staff has now left and my partner has been told that his weekend shifts are to cover for the person that left even though he only left this week and they've had 3 months notice of him going....staffing levels should not be our issue but they're making it out as if they are.

This depends on his contract. If his contract states weekend working, without stating how often, then he has no comeback, I'm afraid. It often happens on shift work, and when people leave staff have to cover. Staffing levels are the company's issue, but they also become your OH's issue if he is contracted to work flexible hours. Check his contract on weekend working, flexible hours and working hours, but I suspect you won't have any rights on this one.

Does a franchise have to be open a certain number of hours in order to 'be legal'?

I don't know on this one, but I can't see how any business can operate 'illegal' minimum hours. If they're open, they're open; if they're closed, they're closed. Unless they fall foul of trading standards or the working time directive then I can't imagine that opening fewer hours would make them 'illegal'.

Given that you're about to have a baby (congratulations, by the way ), I wouldn't be rocking the boat; he needs the job to support you and bubs. On the shift work issue - that's just shift work I'm afraid. And they've made an effort to give him different hours at a different store, but they have no obligation to do it.

Disheartening as it may be, he should definitely keep applying for more jobs, and enjoy your new baby when it arrives. But def check out the annual leave, as that is illegal if he is getting less than his FTE of 5.6 weeks.

HTH
KiKi

Animagdon

Thanks for that KiKi I've had a look at his contract and regarding his hours it doesn't really state a minimum etc....when he first started he was doing 20-35hrs a week but now he's doing 45-50 (6 days a week 10-11hrs a day) and the contract says that he has to work wherever they send him to (so I suppose the request to go to another store 25 miles away isn't unreasonable from their point of view).

I only asked about the opening hours of a franchise in light of the recent armed robberies.....the area manager said that they couldn't shut the store early because the owner would lose his franchise status if he was open less hours than advertised (so if they shut at 8pm when the opening hours should be until 10pm for instance) but I don't know how true that is.

With regards to his holidays since he has been working there he has taken a weeks annual leave which was back in March but he didn't fill out an annual leave request for this as it was a holiday we'd had booked before he was made redundant from his last job so they honoured the time off. If it came out of his annual leave entitlement then he's 7 days down out of 28 which has now confused me further as that should leave him with 21 days and not 15 like they're telling him he has......I've just asked OH about this and he's said they've already been deducting annual leave days from his entitlement rather than give him a rota'd day off - surely this is illegal without his consenting to it?! I could swing for his company I really could.

getmore4less

I've just asked OH about this and he's said they've already been deducting annual leave days from his entitlement rather than give him a rota'd day off - surely this is illegal without his consenting to it?!

Was he getting extra pay,
Companies can say when you take your holidays but thiis might not be right.

Why was 7 holiday days taken for a week off that would not give 5.6 weeks if htere is just 28 days.
Was the full 7 days paid?

What does it say about holidays,
How many days.
How much are they paying for a days holiday.

With these hours I would be asking for holidays based on working hours not days.

MrsManda

Animagdon wrote: »

I only asked about the opening hours of a franchise in light of the recent armed robberies.....the area manager said that they couldn't shut the store early because the owner would lose his franchise status if he was open less hours than advertised (so if they shut at 8pm when the opening hours should be until 10pm for instance) but I don't know how true that is.

I don't think it's illegal but it may be in the terms of his franchise agreement that he needs to open for the advertised hours.

KiKi

Animagdon wrote: »

Thanks for that KiKi

You're welcome.

I only asked about the opening hours of a franchise in light of the recent armed robberies.....the area manager said that they couldn't shut the store early because the owner would lose his franchise status if he was open less hours than advertised (so if they shut at 8pm when the opening hours should be until 10pm for instance) but I don't know how true that is.

No idea, I'm afraid; as another poster suggested, I can't think it's illegal, but it might break the terms of his franchise...?

With regards to his holidays since he has been working there he has taken a weeks annual leave which was back in March but he didn't fill out an annual leave request for this as it was a holiday we'd had booked before he was made redundant from his last job so they honoured the time off. If it came out of his annual leave entitlement then he's 7 days down out of 28 which has now confused me further as that should leave him with 21 days and not 15 like they're telling him he has......I've just asked OH about this and he's said they've already been deducting annual leave days from his entitlement rather than give him a rota'd day off - surely this is illegal without his consenting to it?! I could swing for his company I really could.

Don't forget that the 28 includes Bank Holidays, so you need to deduct all AL working days plus all BHs that he's had off from the 28.

It is illegal not to allow an employee the full 28 days off a year. However, the employee can choose not to take them (maybe to help out the employer at a tricky time, goodwill and all that) and carry them over if the company policy allows it. But it's the employee's choice. The company have a legal obligation to allow the 28 days to work within UK law, although they can also tell the employee which 28 days they will be.

In this case it seems that they are not allowing the 28 days at all, and this should be raised formally, by letter with the HR department, copied to your OH's manager. As there are not many days left this year, this needs to be sorted immediately. Full time pay already includes holidays.

He could be kind and offer a compromise: eg, you owe me 10 days AL (for example), and I will agree to only take 5 if you pay me an extra 5 days' pay. Or I will work 4 as long as I can carry the other 6 into January. But you MUST get it in writing.

HTH
KiKi

KiKi

Just noticed that he wasn't working full time at the beginning?? 20-25 hours? This will affect his leave entitlement if he wasn't working a 5 day week, full time for a period of time. If you can post days worked, and for how many weeks from Jan 1 up to now I can calculate it for you (or you can do it yourself, it's only a simple percentage anyway ).

KiKi

Mark_Moran

Is this McDonalds you are talking about?

If it is then this can all be sorted out quite easily.

If it isn't McDonalds, it can still be sorted out but can you tell me if he is salaried or hourly paid. How long has he been there. What was his official start date. Was he actually given a signed contract when he started.

Don't get all stressed out while you're having a baby. Some of these managers at these fast food places have a habit of interpreting the law in a way that sounds good to them but doesn't sound too good in court.

Give me the details I asked for above and we'll see what we can do for you.

Mark_Moran

Right, OK, I guess you sorted this problem then.

MrRedundant

Mark_Moran wrote: »

Right, OK, I guess you sorted this problem then.

More likely the OP realised they didnt have a leg to stand on and has decided not to reply.

nomoreboomandbust

I know I will be slated for this, but given the OP's position- ie her husband's precarious work position, why did they decide to have a baby ? it makes no sense to me.