Advice from Employment Law Gurus please

Burny_Sweetwater_Glasgow

Thanks yet again for your responses, they are appreciated.

Just to let you know Im hoping that your advice will benefit many of my colleagues even though I personally do not come into the 2 plus years service category and have only been in staff accommodation for a few months but.....I still want all to be treated fairly at the end of the day.

After receiving your last reply I showed some of my colleagues what you had written and it did boost their moral a little but something that I did not spot in your reply was pointed out by one of them who has been here several years.

What concerned him was that you said "2 years continuous employment" and he said that when most contracts fell due for renewal in January of each year they always issue them one to two weeks after the termination date, as at that time the place is virtually shut down, well put it this way what work there is is very scarce in January. So would that mean that they do not have 'continuous' employment because of this break for 1 to 2 weeks, as the contract does state in a separate clause

5. Date of Commencement of Employment: 'start date'and no other previous employment with the company, any companies within the group or any other company counts as part of your continuous service.

So...does that change everything?

thanks again for all your help

sangie595

I think not. I assume that they stay in the accommodation and don't move out. So I think this would be considered a contrived break by the employer - in effect they are deliberately attempting to circumnavigate the law on continuous employment and the break is not real. Contrived breaks are something that usually try the tempers of tribunals. They take it badly when employers go out of their way to get around the law and do it deliberately. There's more than enough case law on this point to argue. The fact is that they keep the workers, and intend to keep the workers, and as a result they stay in the accommodation. The accommodation is part of the wage - it says so in your contacts, and you are taxed on it. So there is no break in employment, even if the employer thinks there is. In fact, a good lawyer would be constructing several cases around this I suspect, because I think the employer would struggle to justify such a lay off without pay. Variable hour contracts are standardised for wages purposes by averaging out previous wages - they should probably have been paid that average when laid off.

I really do hope that at least some of your colleagues are recognising the error in not being in a union. No matter how low your pay, you can never afford to not have a union behind you. Had you been union members, you would have had representation, and lawyers to help you. And in the numbers involved here, it would have attracted adverse publicity for the company that they can ill afford. The media is seldom interested in employment disputes, but this would be the sort that would attract attention.

Burny_Sweetwater_Glasgow

Again many many thanks for your advice

As I said previously there will be new contracts issued in the new year and as yet we only know for certain that the new contracts will not have a clause offering accommodation. Anything else at this time is unknown.

But now I have another question, as if these staff members haven't been kicked in the teeth enough already.

I have just been reading all the jobs on offer at our resort at this time and one particular vacancy caught my eye. Its a vacancy working in the housekeeping team, admittedly it is only part time, no issue with that but its advertised as a permanent position and the wage stated is from £8.50p ph, full training etc will be given etc.

My issue with that is those that currently do that job, on a full time basis (although hours can be variable) are only getting £7.20 ph, even Housekeeping Team Leaders who have been here a number of years do not get £8.50 an hour.

This is an insult to to injury to the hardworking housekeepers.

Can they get away with this?

Your feelings on this would be greatly appreciated, just I cannot believe they can get away with recruiting new staff members on completely different and substantially better terms than the existing housekeepers...even if it is only part time.

Thanks again

Burny_Sweetwater_Glasgow

Here is the advertised vacancy
"
Posted: 08/10/2016
Type: Permanent
Working Pattern: Part Time
Closing Date: 22/10/2016
** Housekeeping positions available - starting rate £8.50 Per Hour **

As a Housekeeping Team Member you will care for the cleanliness and upkeep of our guests accommodation. You will be part of a high performing team ensuring our accommodation meets our standards and our guests expectation. This position is 16 hours per week over 3 days. Mondays & Fridays are fixed days but the third day can be flexible.

The purpose of the role is to:

Work proudly and consistently to clean & prepare our guest accommodation
Ensure all accommodation is ready at the expected times
Be guest focused, having a positive and problem solving attitude at all times
The main working hours are on our intake days, Monday and Friday, but the third day can be flexible and we can be flexible with start and end times too
Pay starts at £8.50 per hour with the opportunity to develop your career and increase your rate of pay up to £10 per hour.
The benefits of working with us:

Free use of many of the Resort facilities and discounts off our food and retail outlets.
Discounted holidays for you, your family and friends.
Reward and recognition schemes
Opportunity to develop and progress
Qualifications/Experience/Training:

No formal qualifications are required but a good standard of English spoken language is required
We place focus on the right attitude and the ability to embrace our culture
A full training program will be provided
Terms & Conditions apply to this role, which will be discussed at interview stage.

sangie595

Yes, sorry, but an employer can pay different amounts for the same job. They cannot do that BECAUSE of a discriminatory reason, such as race or gender. But just because they decide that? Yes. But there is nothing to stop existing staff applying. That would give quite a bit of extra money for the living costs.

Burny_Sweetwater_Glasgow

Thanks, Im seriously lost for words, its bad enough that we have under 25's training over 25's and receiving a lower hourly rate to do this than the newbie.
So the existing staff only have the option to apply for these positions if they want to have a higher hourly rate but LESS hours per week, so really would be financially worse off than they are now.

I will be honest with you here. Years ago I had a situation to do with rate of pay I was being offered due to a take over by another company and I asked for support from the union that was involved with the take over company. They refused to support me as they said they would be fighting to retain the level of my salary which would have been higher than others in a similar position within the company taking over my company. Guess times have changed.

jobbingmusician

It isn't a lower rate, though, is it? Because it is an hourly rate of pay without accommodation, if I have understood your posts correctly, whereas the current rate of pay includes accomm......

Perhaps I have misunderstood?

Burny_Sweetwater_Glasgow

Apologies that was just a post made as a reaction to the frustration of all these hard working people.

So what you are saying is that a person can be offered the exact same contract of employment but be paid completely different rates of pay!
Surely that cannot be seen as fair and just. Would not an existing employee with more than 2 years service have NO recourse under existing employment legislation to be paid the same rate for exactly the same role? Would there not be grounds to go to a tribunal for constructive dismissal?

Burny_Sweetwater_Glasgow

They are paid a reduced hourly rate as the accommodation costs are clawed back through an hourly reduction. So hourly rate is £6.23p for first 39 hours a deduction of .97p per hour to pay accommodation cost (So gross would be £7.20p ph)

That is per week the first 39 hours are at a reduced rate.

Undervalued

Burny_Sweetwater_Glasgow wrote: »

Apologies that was just a post made as a reaction to the frustration of all these hard working people.

So what you are saying is that a person can be offered the exact same contract of employment but be paid completely different rates of pay!
Surely that cannot be seen as fair and just. Would not an existing employee with more than 2 years service have NO recourse under existing employment legislation to be paid the same rate for exactly the same role? Would there not be grounds to go to a tribunal for constructive dismissal?

Yes they can.

Whether it is "fair and just" is a matter of opinion but it is perfectly lawful.

People often seem to have the misapprehension that "employers can't discriminate". However that is not the case. There are a handful of types of discrimination that are prohibited by law (sex, religion etc) but apart from that an employer can discriminate in any other way they please.

If you think about it employment is actually all about discrimination. Who do you choose to employ? Who gets promoted. Who gets a pay rise? Ideally you may say that should be decided on merit but then who defines what is meritorious?