Advice from Employment Law Gurus please

Burny_Sweetwater_Glasgow

Good evening.

First let me express, on my own behalf, my appreciation to those that have been willing to impart their knowledge and experience to aid me with all my questions.

Following on from that, yep, need to seek more of your assistance sorry.

Have been doing some reading on the subject of these consultations, what the employer should be doing and taking into account of, to minimise the effects of redundancy on the individual/group and from the business aspect.

Yep they seem to be considering concerns that have been raised by the ‘representatives’ of all the groups concerned and I have read through the printed presentation that was given at the meeting today. Certainly they have thought about who are critical to the business and staff who have specialised roles that cannot be recruited locally, roles that have unsociable hours etc etc. So yes they are coming across with a business case for offering accommodation to certain roles/positions. All seems pretty plausible based on their selection criteria.

They then mentioned about a period of 12-18 months that accommodation would be made available under the new proposals (is that something worth noting that it is under a 24 month period) as they stipulate they do not want staff to see this as a place to call home.

They also said ‘a full care plan will be offered to all staff who are required to move out’.

Continuing to reduce the numbers that will be ‘problem’ (my choice of words) cases they then propose that all Team Leaders will not be offered accommodation as they see their role as being leaders and that accommodation is for team only. If this is to be the case they then say that the following would have to be put in place for these Team Leaders

New permanent or Annualised contracts
Increased Salary
Evolved Job description/ Responsibilities to reflect increase

They then state ‘Full details and what it means to the individual ‘Team Leaders’ will be discussed as part of the 1-2-1 meetings in November

They then move onto the ‘Care Plan’ for the remaining team who will not be offered accommodation and confirmed:-

New Annualised Contracts
Business will act as guarantor
Support with furniture (existing)…if I clarify that they have said that team can take existing furniture that is their apartments…if you could see the state of that its not really worth having, cast offs from hotels on resort
Support with removals

What they cannot confirm at this point is:-
Support with admin fees (charged by letting agents) Would this be covered by employer or by a loan from employer
Deposits (amount to be agreed)
1st month rent (amount to be agreed)

At the end of the presentation notes it states 1-2-1’s will start on Nov 2nd.

Now I apologise if all that info seems irrelevant but I just wanted to show that they are or seem to be fulfilling the role of a caring employer! Trying to minimise the numbers affected and the stress of all the proposed changes.

So what was the point of posting this? Well many of those involved have become friends and to not be emotive about what is happening is sometimes hard to hold back. But the one question that sticks in my mind is ‘Should not the topic of possible redundancy be part of this discussion’. There has been absolutely no discussion on this to my knowledge other than the HR1 form being handed out. Is this not a vital ingredient to be included for all those that are involved in this proposed change? Also there has been very little discussion on the ‘new’ contract that will be introduced.

What are your thoughts?

Finally, as if that was enough, I was thinking about sending the following to the HR dept, what are your thoughts on this?

“It was minuted at the first meeting that a form HR1 was given out to each representative and that was all that appeared in the minutes. Nothing else.

Having asked to see this form it would appear to be the required notification that must be given to the Government and to people (team) who may be facing a possible redundancy situation (201 being the number stated in section 6). The consultation period also complies with the numbers involved and I noted that the reasons given for possible redundancies is all to do with the possibility that if accommodation is not provided then a team member may well decide to leave the employment of xxxxxxx. (I refer you to sections 5 and 9)

My concern is that the company has not provided or even attempted to provide team members with details of the possible redundancies (have all team members been made aware of this, have they indeed been shown this form by their representative) or the terms on which they may be offered and therefore team members are not in possession of the full facts to assist them in making an informed decision and what maybe to most of them, a life changing decision.

The number stated on the form was originally 201, sadly this will have reduced as some have already made their decisions and left and some others may well be considering the same course of action. As we have seen there was over 170 team members who have been with the company for 2 or more years and these are the team who have continually given 100% effort in their positions and they deserve to be provided will the full facts in relation to terms of redundancy as their contracts, along with all the others who live on resort are being changed, the accommodation was an intrinsic part of their contracts and that will be removed as far as we are aware.

I appreciate that the company is concerned about the consequences that those who may ultimately may find themselves displaced and also that they have stated that they do not wish to ‘lose team’ through this process and I wish to say that conversely many team themselves do not want to leave. However for those that do find themselves displaced they will need to be provided with all the facts to make their decision.

I therefore ask if the company would be good enough to actually state what the terms of possible redundancy would be, for the team that qualify for redundancy, to enable them to make an informed decision and I would ask that all representatives disseminate this information to those that they have been chosen to represent.”

That’s it I think other than saying that I spoke with a member of a vital team to the operation of the resort today, they told me that due to resignations from their team agency staff were being taken on and they were getting over £5 ph more than them. They were not happy…would you be?

Thanks with bearing with my long rants and thanks for all your advice.

Oops No! Over the last couple of days there has been various forms of communication used to let everyone know that there is plenty of overtime up for grabs in 2 specific job roles, both vital in keeping their guests happy! Could this be seen as a direct result of the way they are dealing with all these proposed changes? Lol

sangie595

OK. I need to explain a bit more about redundancy. First of all, it doesn't exist. Ever. Confused now? Good. My job in life is to confuse people with employment law they thought they understood.

Contracts come to an end in three ways. You resign. They sack you (dismissal). And mutual agreement. That it's. When an employer dismisses you and terminates the contract, there are a number of what are called "legally fair" reasons for dismissing you. These apply even if you can't action the dismissal in a tribunal - the tribunal entitlement is, perhaps, "icing on the cake" in that you can do something about dismissal for an unfair reason.

So, in law, if you steal the resorts takings for the month, you would expect to get "fairly" dismissed, and you would be. Yes? If the employer no longer has a job for you to do (and remember what I said before about how a job is defined - it's the "package" of the role and the terms) then they dismiss you. This is one of those legally fair reasons, and it is described as a dismissal "on the grounds of redundancy". It is the jobs that are redundant, not the people - the people are dismissed. So an employer issues the HR1 when the jobs are at risk of redundancy. The jobs, not the people.

Now, it is perfectly possible to have 1000 jobs at risk of redundancy, and not a single person to lose their employment. Because the law says that the employer must do everything reasonable within their power to avoid dismissing people as a result of the jobs becoming redundant. Therefore, "redundancy" (and I am using that term in the way that the world uses it - the way you have been seeing it) is not a pick and mix. It isn't an option. It is a last resort and one that the employer is legally obliged to try to avoid as far as possible. So you don't get a choice of "would you like to have a rent package" or a "redundancy package"?

If someone who has more than two years employment believes that the difference between what they had, and what is on offer, is so large that it is unacceptable, then they may, depending on how they want to play it and their circumstances, claim unfair dismissal IF the employer attempts to enforce the change or refuses to consider this a redundancy. That is not the same thing as winning such a case though. A tribunal would have to decide what was reasonable in the circumstances. And that can be difficult to pin down as an exact science. Believe it or not, it is even possible (although not something I would recommend) to claim unfair dismissal in these circumstances and continue to work for the employer!

Now that was a very brief run down of a complex area, so it may not be digestible. Say if it isn't and you don't understand.

Thus, your letter is "redundant" - you are asking for a choice where it is entirely possible that none exists. The choice is between accepting what is offered, or challenging that what is offered is a suitable alternative employment. If people do the latter, and have the qualifying years for redundancy payments, then it will be up to them to argue that they qualify for redundancy because the job offered is not a suitable alternative.

Now I am basing this solely on what you have just said about the employers offer. Which isn't a lot. I don't know the actual details of hours, wages and so on. But I can easily see that this sort of offer may well be deemed a suitable alternative in law. In other words, there is a very good chance that any claim would fail. However, that is a guess based on very little information. Probably a good guess though.

On the other hand, it wouldn't be unusual for an employer to settle before a tribunal because it's generally cheaper, even if they know they will win. So for anyone willing to push it to the wire (and remember - tribunals cost money!) they might get something. What they "might get" will be what is inevitably on offer if and when it is offered - statutory redundancy. Which is a pittance.

What strength you have is, as I said before, in numbers. It is also best directed at improving what is on offer in the package. That is where you have the greatest chance of success, not least because, in the final analysis, the employer actually wants to retain the staff. See it as a game of chess. They want to retain the staff at the lowest possible cost (and please understand, in this they are neither good nor bad - this is what employers are!). And you want as much pay and conditions as you can get. Remember in the old days (if you are old enough!) it used to be called "class war". Well there are still classes and they are still at war. Just remember that no war is ever won on the battlefield, it is won (or lost) in the negotiating room. The battlefield is just a place where you soften the enemy up and get casualties.

And after all this, I will be deeply disappointed if you don't join a union and get your backside in gear to become a rep, and possibly, in time, a full time official. We need more people with the fire in their belly to fight a fight for others. Most people stick their head under a parapet and wait until the shooting stops. Which is actually a great idea and a perfectly legitimate choice. But if you are one of those rare people who simply cannot do that, then you should be "getting armed" with the training and protections that being a union rep brings. You wouldn't be the first person to suddenly find a whole new career option, and an unexpected one at that, from a situation like this.

Burny_Sweetwater_Glasgow

Hello again and thanks for all your comments and advice. Been floored with a flu bug hence delay in responding.

Well latest situation is that tomorrow, Tuesday our reps have a meeting with the management, what the purpose of this will be I have no idea. I say that as we have been notified that there will be 2 meetings held later on that day for all the affected staff to be able to attend to hear what is happening! Seems to me that its already decided so whats the point of the last reps meeting.

Anyway, in the last meetings minutes it was stated that the company could function with around 300 team having to be provided with accommodation and lo and behold it would appear that the numbers of staff who have left, are leaving or going to leave by the end of the year amount to around 150! (actually approx 60 of this number are what they call team leaders and that position it has been agreed will not have the offer of accommodation - reason given that they are seen as future leaders and that the bed space should be used for general team members...the remaining numbers are people who were leaving anyway either for pre-arranged reasons or found new employers stc) So that means basically all those that remain of the existing staff should be offered a bed somewhere! Handy that I think. Oh and they have informed us all that they are increasing the existing rent for the present accommodation, not by a great deal I admit but an increase none the less. So that really solves the issue for them about having a number of people who might have needed some kind of help with having to rent private accommodation!

Latest rumour (yes I know we should only base things on facts but this has come from 2 different sources) is that on one section of the resort they are going to remove all accommodation staff and replace them with agency workers. Not sure what will happen with these staff members but guess they will be placed elsewhere on the resort, especially as they have or will soon have lost some 150 people!

So where does that leave us now, the accommodation issue would appear to be possibly dealt with, well maybe we will see, so that really brings us onto the new contracts that they intend to issue. There has been little discussion about these except than saying what they have shared so far are just drafts. There are 2 that may be relevant now the first being an 'Annualised' contract and I have copied this in after my posting here to ask if anyone has any advice or concerns about the way this contract has been drafted, should we look at negotiating any specific changes in it, are there any pitfalls to consider. Like I said there has been very little discussion about the new contracts during the consultations...should there have been? or is this a different issue from that which I originally posted?

Anyway any thoughts, advice etc would be appreciated...so here it is, thanks again for all your contributions.

"1. Issued in accordance with The Trade Union Reform and Employment Rights Act 1993 and The Employment Rights Act 1996.
2. This agreement is made between: xxxxxxxxxx Services Limited (the Company)
And
«First_Name» «Surname» (the employee)
3 . Date of Commencement of Employment: «Annualised_lssued»
4. Date of Continuous Service: «Continuous_Service»
5. Job Title: «Job_Title»
6. Probationary Period
Employment is offered conditional upon you completing to the Companys satisfaction a probationary period of xx weeks. Management may, at their discretion, extend your initial probationary period if the required standards of performance and conduct are not achieved. Should you fail to meet the Company’s requirements at any time during your probationary period your employment may be terminated without recourse to the disciplinary procedure. No holiday may be taken during the probationary period

7. Normal Place of Work and Mobility
Your normal place of work will be at (Location) in the «Department» department. Although you are employed in the above capacity, you may be required to work in other departments, or required to undertake other duties, as business needs dictate.
it is a term of your employment that you may be required upon reasonable notice to work on a short-term basis at any one of the Company’s locations. If you are required to relocate within the UK, the Company undertakes to give you reasonable notice and to pay reasonable relocation expenses, in accordance with the policy prevailing at the time. Whilst the Company will always seek to accommodate personal preferences, it reserves the right to insist on the implementation of this clause if this is necessary to meet its business objectives.

8. Normal Hours of Work
In normal circumstances, your hours of work will be up to 35 per week. It is a condition of your employment that you work flexibly in accordance with the annualised hours working scheme operated by the Company. There are no fixed daily or weekly normal working hours applicable to your employment. Unless otherwise stated, your normal working hours are based upon you working 1820 hours per calendar year (including holidays) at a notional average of 35 hours per week. A notional day’s work is 7 hours excluding meal breaks (pro rata for part time Team Members). In order to ensure equality, a notional working day is calculated by the notional working hours divided by the notional working week e.g. 35 divided by 5 = 7.
You may be required to work more or fewer than 35 hours per week depending on business needs. If rostered, you will be required to work on Bank and Public holidays and you will be paid your basic hourly rate for doing so. However, if you work On Christmas Day, Boxing Day or New Years Day, you will be paid at double the hourly rate for each hour worked.

9. Rostering Arrangements
As you will be working in a dynamic environment, your work will be scheduled to meet the requirements of the business. However, the Company confirms that, save in exceptional circumstances, you will not be required to work more than a maximum of 48 hours per week and no more than 6 days per week averaged across a 52 week reference period.
You will be advised of your weekly rota .in advance of the commencement of your working week. The Company reserves the right to alter this rota at short notice but will endeavour to give you at least 72 hours notice of such alterations.
You must comply with the Company’s procedures for recording the actual hours you work in conjunction with your Team Manager. Only hours actually worked by you will count towards your contracted annual hours target.
If, for any reason, you are unable to work the hours advised in your weekly rota, you should inform your Team Manager immediately so that alternative cover arrangements may be made.
The management and scheduling of rostering arrangements for annualised hours will be reviewed on a yearly basis. The Company confirms that any revision will not increase the number of basic contracted hours which you can be required to work above the number stated in this contract (excluding additional hours). If the Company chooses to alter the date when the annualised hours arrangements are to be calculated from, your annualised targets will be calculated on a pro rata basis for that shorter period (whether due to your start date or any other reason).

10. Additional and Under Worked Hours
You may be required to work additional hours in excess of those stated above. You will be paid at the basic hourly rate for each hour worked by you in excess of the 1820 contracted annual hours. If you have worked hours above the pro rata equivalent in a given month, you will either be rostered to work less hours in subsequent months, or you will be paid the additional hours due following completion of your 1820 contracted annual hours. This is done at the discretion of the Company.
if you leave the Company part way through the year and you have not worked the pro rata equivalent of 1820 annualised hours, you will be required to repay the Company in respect of any hours you have been paid for in excess of those worked at the date of leaving and you hereby agree that the Company may make a deduction from your wages in respect of any such overpayment.

11. Rate of Pay
Your annual basic salary is £«Salary_35_hours» based upon an hourly rate of £«Rate». Your salary will be paid fortnightly in arrears by BACS transfer directly into your bank account. Payment will be made in 26 equal instalments without regard to the number of annualised hours you have actually worked during that week. You will not be paid at a rate less than the National Minimum Wage that applies to you, for each hour you have worked.

12. Accommodation if your position requires you to live on site, the Company will provide you with suitable accommodation, provided that you agree to enter into an Accommodation Agreement with the Company and abide by the terms and Conditions laid down in that Agreement. Violation of this Accommodation Agreement may result in disciplinary action up to and including dismissal.

13. References
Your employment by the Company is subject to the receipt of satisfactory references and, if appropriate, a satisfactory medical assessment. in addition, the Company reserves the right to request Disclosure from the Disclosure and Barring Services.
The Company reserves the right to terminate your employment, with or without notice, in the event of receiving unsatisfactory references, unsatisfactory Disclosure data or an unsatisfactory medical assessment.

14. Right to Work
it is a fundamental term that you have permission under UK immigration law to undertake this employment and, where applicable, that you hold and continue to hold valid and appropriate UK immigration clearance or leave to remain. in signing this Agreement you are confirming you have the right to work in the UK and agree to produce original documentation evidence of your right to undertake this employment prior to commencement. You commit to notifying the Company immediately in writing should your entitlement to work in the UK change. Should you fail to produce the correct documentation or your entitlement to work in the UK be revoked or expire, the Company reserves the right to terminate your employment with immediate effect.

15. Holidays and Holiday Pay
The Company’s holiday year runs from 1st January to 31st December. Holidays must be taken in the specified Company holiday year and you are not entitled to carry forward any untaken holiday.
Your holiday leave will be calculated in accordance with the Working Time Regulations, which provides for all team members to receive 5.6 working weeks statutory holiday leave in a complete holiday year to a maximum of 28 days. For the purpose of the Working Time Regulations, your statutory holiday leave is defined as 5.6 weeks inclusive of any public holiday leave taken details of which are available in the Team Handbook. Your holiday pay is calculated at your normal hours per week and basic pay, as stated in Sections 9 and 11. During your employment, the annual leave you may take at any time is limited to the amount, which is deemed to have accrued at the time the holiday leave is to be taken. After one week’s employment, leave will accrue from your first day of employment. Fractions of a day will be rounded to the nearest half-day.
The Company has the final decision as to when holiday leave shall be taken and specifically reserves the right to refuse any leave request that is submitted. All holiday leave must be authorised in advance by your appropriate Team Manager and your Senior Manager must approve all holiday leave absences that are to exceed 2 weeks. Four week’s notice is required prior to taking leave and no holiday leave will be permitted during high season .i.e. July and August. Should you work at a location that closes for a number of days each year, you are required to take at least part, if not all, of your outstanding holiday leave during that period, unless othenrvise advised by your Team Manager.
On leaving our employment, any outstanding holiday pay due to you will be calculated and paid as the amount of holiday leave accrued to that day, less the number of days holiday that have already been taken. Where the amount of paid holiday leave taken exceeds the amount accrued at the date of leaving, the Company will deduct the amount overpaid from your final pay or any other payment due to you. If rostered, you will be required to work on Bank and Public Holiday’s, this will be considered a normal working day.

16. Sickness and Other Absences
if you are absent from work due to ill health, the Statutory Sick Pay Scheme may apply subject to qualifying conditions being met and the Company’s guidelines on reporting absence details being followed. You are not eligible to receive any other form of sick pay. if you are prevented from attending work for any reason you must arrange to notify your Team Manager within one hour of your normal start time on the first day of absence and thereafter on a daily basis unless agreed otherwise. Late or non-notification of absence, will mean that Statutory Sick Pay is forfeited. It is a condition of engagement that you agree to be assessed by the Company’s Occupational Health Provider, this may include, but not limited to, an examination by a medical professional. "

Oh and as I said at the beginning the final "consultation" meeting will be held at 11am today, probably will finish 12-12.30pm and then first of the 2 general meetings for staff affected will commence at 1-1.30pm....is that really fair on the reps, how will that give them time enough to feed back from their meeting to their groups so that everyone can prepare their own questions, if they have any, at either of the 2 general meetings which they MUST attend? Then tomorrow the 1-1's will commence and they state that all these will be concluded by the 4th! So by Friday it will be done and dusted OR will it!

getmore4less

"up to latest rumour" ( will read the rest later)

2 things struck me.

Anyway, in the last minutes it was stated that the company could function with around 300 team having to be provided with accommodation and lo and behold it would appear that the numbers of staff who have left, are leaving or going to leave by the end of the year amount to around 150! So that means basically all those that remain of the existing staff should be offered a bed somewhere! Handy that I think.

Very common tactic what what you really want to do is make people redundant, drag out a plan and throw uncertainty into the pot for long enough and often you get the result you want through natural wastage.

they have informed us all that they are increasing the existing rent for the present accommodation

when you mentioned before the rates they were charging I was fairly sure they were under the maximum allowed.

there is a tie in on the charges for accommodation and minimum wage,


https://www.gov.uk/national-minimum-wage-accommodation/rates

Seems to summarize it reasonably well.

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

97p * 39 = £37.83

Might be worth checking the history of the accommodation charges against the min wage..

sangie595

Added to which, the contract is a fairly standard one. So nothing wrong with it in law. It is quite certainly a contract of employment. It would be my view that any attempt to maintain these fictional breaks in employment to deny people continuous service would be a risky proposition for the employer, were it to end up in a tribunal. But this may be the time to tackle that and make the employer know you know - as soon as new contracts are issued this should be questioned by everyone and clear grievances based on the denial of their statutory rights submitted by everyone. A collective grievance would be best so that they can't pick off individuals. And that is why you all need to be in a union. This isn't the end....

Burny_Sweetwater_Glasgow

Thanks for that.

Have checked that link and they are now charging the top amount.

Minds a bit fuzzy still.......what is the benefit to the employer (I see the benefit to the employee, low rental costs), is there any benefit from the employers perspective.

Ok off too work now and will see what today brings, but will keep watching to see if any other advice comes through before the first general meeting.......does seem though that any contract of employment will be written in a way that any employee will need to work in any department at any time any where....so no real job specification or specified role....lol


Thanks again

sangie595

Having the staff on site, using space that would otherwise still be there, saving money.... there would be many benefits to an employer.

Given the type of employment and the employer, to be honest, I think flexibility to the job role is integral to their requirements and not the thing that I would be concerned about.

Burny_Sweetwater_Glasgow

Ok, thanks for that.

So in relation to the accommodation aspect then, through natural wastage, one category of staff agreed that no accommodation will be offered and people deciding to leave the numbers have been reduced to the point that most, if not all will be offered accommodation albeit most will live off the resort in properties purchased by employer (hopefully they will have enough large properties to accommodate the 200 roughly who will not live on the resort). So they showed that they were willing to consider the issues that some displaced people might have been faced with and that in those instances would consider various areas of assistance like deposits, fees etc. Now, except for that one category of staff who already know that they will not get anywhere offered (approx 40-60) and who will receive 1-2-1s to discuss their requirements, there is no need to provide assistance to the majority or even consider any increased pay as they will be housed somewhere! So I wonder what the point of these cases having 1-2-1s!

So they have been shown as good and considerate employers I guess.

As for the contracts....they have said at a previous meeting that the contracts will show how long the continuous employment has been for, and I assume that should reflect each individuals original starting date. Just need to wait and see if that is the case.

One issue that some have expressed some concern about is the issue of what happens if they do not achieve the annual hours stipulated in the contract? Now the company do say that they will endeavour to ensure that every staff member has the 'opportunity' to reach that number of hours each year but what worries some is on 2 counts, firstly what happens if they do not achieve these hours, will the company claw back any over payment and secondly the word 'opportunity'. As an example...hours are short on a particular week for say a waiter so the opportunity that is offered is to work those shortage hours on the gardens team! Where do they stand if they do not want to do that kind of work? Can they refuse as the contact seems to say there is no specific area that they will not be expected to work in if so required by the business?

Its all good fun here Lol.

Thanks for any comments on this.

sangie595

The 1-2-1's are a legal requirement. They must do them so they are.


If you do not work the required hours, then yes, the overpayment will be clawed back. And if you refuse to work because you don't like the work, then that is tough. Do the work or pay back the money. The contract is very clear that you can be required to work in any capacity that the company needs. And in case any smart alecs think of it - you can't wait with a bad back either, so don't try claiming you can't garden because of a bad back! If there are genuine medical reasons why people cannot do certain types of work, then now would be the best time to mention them. Although that may simply create a list of people to be managed out. But I am afraid that I don't see this being substantially unfair - this is the sort of work where flexibility is an absolute and an industry that is very much on the decline. It simply does not compete well against the competition. So there is a limit to how far you can push them. To be honest, albeit they may not be the greatest, I'm surprised at how well they have handled it. Very unexpected for a minimum wage non-unionised environment.

getmore4less

Burny_Sweetwater_Glasgow wrote: »

Minds a bit fuzzy still.......what is the benefit to the employer (I see the benefit to the employee, low rental costs), is there any benefit from the employers perspective.

Look at how many people that worked there were local.

Subsidised accommodation has always been common practice of the hospitality and accommodation trades(Hotels,camps, etc) especially seasonal since the local communities could rarely supply enough staff.

having accommodation means you can get the workers you need to tun the business.