Part time worker just made redundant

ahall41116

Hi,

I hope you can help me. My daughter has worked at a cafe at a local fisheries saturday's and sundays for the last 4 years, and other than some changes to her workign days (some weekends just one day) she has stuck to the same hours all the time she has worked for the owners.

Before Christmas, she was told the cafe was closing for the winter, to re-open at easter.

She got an email on Tuesday telling her that the cafe will now not re-open, thank you for all your hard work, see you around.

She has never been given a contract, and she is 21 in August.

Q1. Has she been made redundant? is she entitled to redundancy payments?

Q2. When the cafe was closed before Christmas, was this the same as being layed off? should she have been entitled to payments during this time?

Q3. should she have been entitled to holiday /BH pay even though she only worked weekends?

Q4. should she have a contract of employment?

any help would be appreciated.

Ashley

anamenottaken

ahall41116 wrote: »

Hi,

Q3. should she have been entitled to holiday /BH pay even though she only worked weekends? Entitled to 5.6 weeks (her weeks) if working for a full year - pro rata basis.

Q4. should she have a contract of employment? Should have received written particulars of employment within two months of first starting work there. Should have covered things like holidays.

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popadom

I know its not a great suitation but dont chase the former employer/threaten ect. instead ask them, so your daughther could get some help (but you may struggle to get it back dated as the jsa will ask why you took so long),to make a contract. Be nice and say you only need it for support. But i wonder if they were paying tax on your daughthers earnings-as if they wernt they maybe relucent.

ahall41116

i spoke to her (now ex-) boss yesterday, and she admits she should have issued a contract, but she also claims my daughter was a casual employee, despite working regulary the same hours every weekend.

She also now claims to have put the matter in the hands of the lady who does her payroll, to see what needs to be done to resolve the issue.

im not hopeful, but any thoughts on the legalities on what she has done would be appreciated.

Ash

dawnybabes

this web site shows she should get about 2 weeks pay

http://www.lowpayunit.org.uk/eras/advice/statutoryredundancy.shtml

ahall41116

can we reclaim unpaid holidays?

dawnybabes

I think it depends if she was allowed to carry them forward - year to year, think she can only claim for the "valid" ones so they will probably say the year was dec to jan so in this case she would be entitled to Jan to now (but if she hasnt worked not sure how it would work as it will probably be the average of the last 12 weeks earnings which in this case is nothing)

I'd phone ACAS and ask them as yes she is entitled to something

getmore4less

When was the lay off anounced?

She should have complained then, by not it could be deemed to have accepted this variation.

You have 3 months less a days to put an ET in for the layoff which was not contractual.

As for the claim she was casual, that could depend on how many contiuous weeks she had been working without any unpaid time off.
Any break of a full week(including a Sat) would break continuity of employment.

CHeck with ACAS to see if she can put in a claim against the lay off and non payment of notice and redundancy.

At a minimum unless they can justify the casual working with lack of continuity here will be 4 years service

Even if they want to avereage the redundancy payment it is based on weks where you were paid so the layoff without pay does not count.

There is also some guarantee pay due.

Holidays, without a contractual holiday year that is based on start date.

anamenottaken

If they haven't issued written particulars, then the holiday year runs from the first day of employment.

Only the current year's accrued holiday could be claimed - as I'm sure they won't be offering more than the statutory minimum entitlement which has to be taken in the year it is "earned" or is lost.

If they want to say she was "casual" but were still paying her under PAYE, then just use 10.07% of the time worked in the holiday year.

ahall41116

Hi,

thanks for the info so far. My daughter has received a letter this morning:

Dear xxx

Following my email with regard to the closure of the caf! at xxx I am writing to invite you to attend an informal meeting to discuss your work situation. I would like to schedule the meeting for Friday at 2pm at the caf!. The meeting will be attended by myself and if you wish you may bring a work colleague or trade union representative. If this time is not convenient then please let me know and I will re-organise it for a time that is suitable for us both.
I look forward to hearing from you.
xxx

During her time in work, she was never offered the opportunity to join a union, and i am surprised they are recognising one. I am sure this is to stop me from representing her. she is a member of usdaw through another part time job, and we are hoping the rep form usdaw will assist, but if not, are we entitled to ask for me to be allowed?

I have also spoken to acas, who were tremenously helpful. they confirmed pretty much what we had collectively gleaned, a written statement should have been issued confirming her casual/flexible/part-time status, holiday entitlement, hours, summary of role etc. and without this, it is harder for the employer to argue against the 'norm'

to summarise our position, we are going to argue for:

full pay during lay-off
3 weeks pay in leu of notice
1.5 wks redundancy payement
holiday entitlement of 5.6 working weeks from the commencement of her employment as there was no written statement (although we expect to only get current year (based on start date of april))

Is there anything we have missed?

Ash

anamenottaken

ahall41116 wrote: »

Hi,


During her time in work, she was never offered the opportunity to join a union, and i am surprised they are recognising one. It is not for the employer to offer the opportunity - it is for the employee to decide to join a union. The employer cannot treat them adversely because they have decided to join (or not join) a union. In fact they do not need to know unless there needs to be direct contact because of a work problem. I am sure this is to stop me from representing her. They have to offer the opportunity for your daughter to be accompanied by a TU person: it is the law. It isn't really representation, more a companion. she is a member of usdaw through another part time job, and we are hoping the rep form usdaw will assist, if her work for this is covered by USDAW (which I think it would be) then they should be willing to provide someone to attend the meeting) but if not, are we entitled to ask for me to be allowed? You could ask to attend - check the role you would have - but they don't have to agree.


holiday entitlement of 5.6 working weeks from the commencement of her employment as there was no written statement (although we expect to only get current year (based on start date of april)) - Use a date in April if that when she started working for them - and it runs from the day (ie could be 14 April or any other day, not the 1st unless it was actually the 1 April that she began work).

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