New employer cut hours from 40 to 16 after tupe

FBaby

Unfortunately it looks like you are not protected, but I really feel for you, seems very unfair just on the basis of a contractual technicality. Hope that prompts you to look for and find a better job.

gettingtheresometime

tir21 wrote: »

But theres got to come a stage where the contract gets superseded by what is actually the situation in practice

why do you think this ?

Seriously with your history you should consider either getting out of that sector and / or joining a union.

theoretica

A relevant case - not looking good for you:
http://www.xperthr.co.uk/editors-choice/zero-hours-provisions-in-contract-still-enforceable-after-years-of-full-time-work/102501/

tir21

theoretica wrote: »

A relevant case - not looking good for you:
http://www.xperthr.co.uk/editors-choice/zero-hours-provisions-in-contract-still-enforceable-after-years-of-full-time-work/102501/

This ruling seems to contradict Pulse Healthcare v Carewatch Care Services Ltd

http://www.hilldickinson.com/publications/employment_and_pensions/2012/august/zero_hours_and_employment_stat.aspx

tir21

Pulse Healthcare v Care Watch Care Services Ltd

tir21

theoretica wrote: »

A relevant case - not looking good for you:
http://www.xperthr.co.uk/editors-choice/zero-hours-provisions-in-contract-still-enforceable-after-years-of-full-time-work/102501/

Maybe i didn't make it clear in my op. Its not that the shifts i do now won't still need covering - its just that someone else will be doing them

There has been no fluctuation in the service the company has to provide

Maybe the fact Mr Davies was not replaced by another worker is what lead to him losing that case

tir21

Quite interesting reading from the following website
http://www.twobirds.com/en/news/articles/2013/global/zero-hours-contracts-balancing-interests

The legal status of zero hours contracts is unclear and whether or not an employment relationship will arise under such a contract will depend on the particular circumstances of the agreement made between the parties, not just the wording or the fact that it is marked as being for "Zero Hours".

The key question to be considered in determining whether a worker on a zero hours contract is an employee will be of whether there is a "mutuality of obligation" between the parties arising under the contract. In Pulse Healthcare Ltd v Carewatch Care Services Ltd and Ors EAT 0123/12, the employment statuses of five care workers on zero hours contracts were scrutinised in order to ascertain whether there had been a transfer of their employment from Carewatch to Pulse pursuant to the TUPE service changes provisions. The EAT held the zero hours contracts of the care workers to be contracts of employment on the basis that, despite the contracts being labelled "Zero Hours Contract Agreement", the contracts themselves did not reflect the true agreement between the parties. There was a clear mutuality of obligation between the parties as the employer was obliged to provide work and the care workers were obliged to accept it.

In making this decision, Richardson J relied on Consistent Group Ltd v Kalwak [2007] IRLR 560 (which had recently been applied by the Supreme Court in Autoclenz Ltd v Belcher and others [2011]UKSC41I) which set out that in considering employment status the tribunal must look to "the reality of the obligations", not just to the written agreement itself. In that case, it was held that even where a contract purported to provide flexibility, for example, allowing a worker to refuse work or to provide a substitute, one must look to the reality of the agreement to see whether there was any genuine expectation that the worker would be able to do this. It is therefore the reality of the agreement between the parties which tribunals will look to in determining the employment status of someone on a zero hours contract.

Gingernutty

I think you're misinterpreting the ruling there.

A zero hours contract means that there is a contract and that there is an employer and an employee even if there are zero hours worked.

You're used to a 40 hour week. That doesn't mean you're entitled to a 40 hour week as standard, that simply means you've regularly worked 40 hour weeks under a zero hours contract.

Your zero hour contract been TUPEd over to a new company, who, for any number of reasons have cut your hours. As they are entitled to do as you are not guaranteed any hours at all.

Maybe they don't want to be so reliant on such few members of staff and are hiring more staff to cover the hours, who knows?

Unlike the staff in Pulse Healthcare Limited v Care Watch Care Services Limited and six others EAT 2012, you haven't been fired. You have been retained with fewer rota'd hours.

tir21

Gingernutty wrote: »

I think you're misinterpreting the ruling there.

A zero hours contract means that there is a contract and that there is an employer and an employee even if there are zero hours worked.

You're used to a 40 hour week. That doesn't mean you're entitled to a 40 hour week as standard, that simply means you've regularly worked 40 hour weeks under a zero hours contract.

Your zero hour contract been TUPEd over to a new company, who, for any number of reasons have cut your hours. As they are entitled to do as you are not guaranteed any hours at all.

Maybe they don't want to be so reliant on such few members of staff and are hiring more staff to cover the hours, who knows?

Unlike the staff in Pulse Healthcare Limited v Care Watch Care Services Limited and six others EAT 2012, you haven't been fired. You have been retained with fewer rota'd hours.

There is not an employer and employee with zhc. There is an employer and a worker. Workers have less rights than employees

If someone is an 'employee' rather than a 'worker' then an employer cannot take a shift off them just because they suddenly feel that they'd rather have two people doing a particular job than one

Your last point (ie retained with fewer rotered hours) would mean that an employer could give someone in full time work -one minute of work to do per week and claim they hadnt actually been fired - when in effect they had been fired

You also cannot determine that the workers in the pulsehealthcare case wouldn't have won their case if their hours had been cut rather than them being fired

They won their case because they were employees rather than workers and the new employer treated them as if they were workers rather than employees

Gingernutty

Okay - Here's the full story from http://www.employmentcasesupdate.co.uk/site.aspx?i=ed12286.

This is a very specific ruling for one very specific case.

Although they had originally been TUPEd to Carewatch, they were fired by the new company, Pulse, after the family of the person they were caring for had been reassured the same people would remain caring for her.

They signed an Employment contract with Carewatch, one employee had been paid during a suspension (as an employee would have been), their line manager agreed during cross examination that they they had been employed and that they were employees who had been specially trained to provide care for that one care client.

They were employees of Carewatch who should have been TUPEd over to Pulse or offered redundancy packages.

You have been on a zero hours contract. You're being TUPEd over on a zero hours contract.

They are under no obligation to offer you any hours at all.

That's how ZHCs work.

You're effectively 'as and when' required.