New employer cut hours from 40 to 16 after tupe

tir21

I appreciate your input but from post 20

" 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"."

You think I'm on a zhc but my belief is it isn't a zhc because it is in no way similar to doing casual work.

Also from 20
"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"

I think this summary places greater emphasis on the mutuality of obligation rather than the particulars of the case you set out above

Andy_L

Before the election labour were pushing for people on ZHCs to automatically get a fixed hours contract after 12 weeks of regular hours. Would they need to do that if custom & practice provided the same protection?

Ultimately, even if its not a ZHC the only difference is that they'd have to formally make you redundant rather than just give you zero hours - how much is that worth?

getmore4less

Be carefull the rules on true Zero hours changed this year making some cases probably out of date or no longer relevent.

The key is to decide what sort of contract is in place first basedon te current rules for true zero hour contracts.

Gingernutty

tir21 wrote: »

I appreciate your input but from post 20

" 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"."

You think I'm on a zhc but my belief is it isn't a zhc because it is in no way similar to doing casual work.

Only you know what the original contract says.

You started the thread acknowledging that you had a ZHC so that's the information we're working from.

If the contract is a ZHC, then the employer is under no obligation to offer any hours at all from one week to the next.

The fact that you've been working 40 hours per week for the last three years is neither here nor there.

The new company that you've been TUPEd to is also going to give you a ZHC but it sounds as if you're only going to get a guaranteed 16 hours a week.

That's up to them. They're also under no obligation to offer any hours at all.

Previously, you've been handed a schedule with the shifts on it. The unspoken agreement has been

"We are offering these shifts, can you do them?"

And your unspoken agreement has been "Yes, I can do those shifts."

What happened when you were ill? What happened when you wanted holidays?

Your answer may determine whether you have a case to take up with a union or whether you look for extra work.

tir21 wrote: »

Also from 20
"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"

I think this summary places greater emphasis on the mutuality of obligation rather than the particulars of the case you set out above

I set out above?? :mad:

This specific case, which has no bearing on yours, is the dead horse you've been flogging.

The employees in the Pulse/Carewatch case were being shafted by the new company which tried to take them on as ZHC workers when they were employees of the old company.

You've acknowledged that you're on a ZHC and the new company are also hiring you on a ZHC.

You're being TUPEd correctly.

tir21

Gingernutty

"You've acknowledged that you're on a ZHC"

No i said the contract says i am zero hours. The pulse healthcare case shows that written contracts are less important than the true arangement between the parties


"We are offering these shifts, can you do them?"
And your unspoken agreement has been "Yes, I can do those shifts."

That sounds like a mutuality of obligation


What happened when you were ill? What happened when you wanted holidays

When i am ill i phone in sick and get statutory sick pay. I had to book holidays by writing down each shift i needed to book as holiday. I booked my holidays for august this year - in february


"The employees in the Pulse/Carewatch case were being shafted by the new company which tried to take them on as ZHC workers when they were employees of the old company"

Their written contracts with their old employers said they were zero hours

The point being that the employment tribunal decided that the written contract of employment did not reflect the true agreement between the parties


"You're being TUPEd correctly"

I appreciate your input but i dont think you can honestly claim this with any confidence

tir21

From hilldickinson

"This case serves as a useful reminder that an Employment Tribunal will look at the substance of the relationship between the parties; workers engaged on zero hours contracts may be employees even if there are clear contractual provisions stating that no mutuality of obligation exists.

Employers should also be aware that, where there is an umbrella contract, the employment relationship may be deemed to continue between assignments meaning that individuals can build up sufficient continuity of service to bring unfair dismissal claims or have the right to receive a statutory redundancy payment.

This decision is noteworthy for the NHS in at least two respects. Employers who engage bank staff under contracts which contain a clause stating that no mutuality of obligation exists, but where there is a pattern of regularly offering work and which is regularly accepted, could find that the relationship is one of employment.

Additionally, it is of note that the Tribunal referred expressly to the nature of the work being provided and this was important with regard to the Tribunal’s views of the true nature of the relationship. Commissioners and those contracting for work may find that the TUPE regulations are engaged and lead to the transfer of staff even who work on ‘zero hours’."

Fluff15

So basically you came on here for advice, received very good (and correct) advice on the information you gave us, and don't like the answers so are trying to argue that you're right?

If you're so sure you're correct, argue these points with your employer. But you're interpreting the cases wrong.

LuckyPenny

Let's keep it simple, whether it is in writing or not it has become an 'implied' term of your contract that you work 40 hours. As you have said you have been doing this for 3 years and your payslip will prove this. Raise this issue now to both your old and new employers, don't wait.

tir21

Fluff15 wrote: »

So basically you came on here for advice, received very good (and correct) advice on the information you gave us, and don't like the answers so are trying to argue that you're right?

If you're so sure you're correct, argue these points with your employer. But you're interpreting the cases wrong.

I saw a solicitor at CAB today abd they tend to come down on my side of the arhument rather than yours

You're probably right though