Advice needed on pay entitlement - can employer just stop pay in current circumstances

Molly56

My husband is a coach driver whose work has been decimated due to Coronavirus and lack of tourists. He has worked for the same employer for over 10 years and receives a basic weekly wage. His employer has said that he will pay half pay for last week and next week but after that cannot afford to pay anything for forseeable future. My husband does not have a formal written contract (didn’t seem necessary back then) but assume length of service gives implied contract of service. 

Can his boss just decide not to pay or does he have an obligation to pay wages to his employee; business is very small....one boss / one driver so no one at work to ask.

Any advice would be greatly appreciated, thanks

KatrinaWaves

Put simply it could be the choice between paying your husband in the current climate or going under.

We can tell you the legal position all day long but it won’t stop the company going under. Sometimes you need to wonder what’s better, short term pay or long term employment... 

DanielGodfrey

Hi Molly
Like Katrina has said, it's important to separate your husband's legal position and how that informs the practical steps your husband can take. Legally, it depends on what is in your husband's contract of employment. If he doesn't have a formal written contract, we would need to look at what his hours and pay have looked like over the last 10 years in order to construct what the main terms of the employment relationship are. Let's say for now he's worked the same hours every week for the last 2 years and received the same pay. In those circumstances, your husband should be entitled to the same work and same salary. That said, if the employer is saying there's no work available due to the effect of the pandemic, that is a redundancy situation and your husband may well be made redundant.  There are a lot of complicated variables around this sort of situation but I think the basic thing to bear in mind is there is likely a contractual entitlement on your husband's side but the employer is entitled to take steps to address the coronavirus impact. 

My advice in these circumstances is to try to get through the next few weeks and then see where you stand when the dust settles. 

Undervalued

DanielGodfrey said:

Like Katrina has said, it's important to separate your husband's legal position and how that informs the practical steps your husband can take. ..............
.............. My advice in these circumstances is to try to get through the next few weeks and then see where you stand when the dust settles. 

I would just reinforce what Daniel and Katrina have said.

In the current circumstances there is a very real possibility that any small or medium sized business could collapse. So even if he manages to win a claim against his employer, it will take many many months to reach a tribunal by which time I would imagine there is a significant possibility that this company will be insolvent so he will end up with nothing.

He could almost certainly lawfully be made redundant, in which case he would be entitled to ten weeks paid notice plus ten weeks tax free redundancy pay (possibly more depending on his age). From his point of view that might be the best outcome as, if there is not the money to pay and the company goes bust, he would be able to claim from the government's redundancy protection scheme.

So he needs to have a serious think. If he believes that in a month or two things will start to return to normal and there will be work for him again it may be best to ride it out. If not and there is no useful support forthcoming from the government then it may be in his best interests to try and force a redundancy situation.

Molly56

Just an update....and a few questions....
My husband was furloughed and still is whilst there is no work on the books. There is a possibility of work next month (6 day tour with international travellers) but having looked at the risks involved including the fact his workplace has not been made Covid secure and the potential of transmission of virus from passengers on a 6 day tour we are very concerned and considering refusing the work on the grounds that it is too risky. He is in a clinically vulnerable group (male coach driver/69 / type 2 diabetic) 
Are we within our rights to refuse this work, if so how will it affect his furlough and could it in any way affect any subsequent redundancy. Could his employer argue that any future redundancy claim is compromised by my husband refusing to work when he doesn’t feel safe in what he is being asked to do?

sharpe106

You can obviously refuse to do the work. When you say next month do you mean into August? as then is when shielding is meant to stop. 

epm-84

Molly56 said:

Just an update....and a few questions....
My husband was furloughed and still is whilst there is no work on the books. There is a possibility of work next month (6 day tour with international travellers) but having looked at the risks involved including the fact his workplace has not been made Covid secure and the potential of transmission of virus from passengers on a 6 day tour we are very concerned and considering refusing the work on the grounds that it is too risky. He is in a clinically vulnerable group (male coach driver/69 / type 2 diabetic) 
Are we within our rights to refuse this work, if so how will it affect his furlough and could it in any way affect any subsequent redundancy. Could his employer argue that any future redundancy claim is compromised by my husband refusing to work when he doesn’t feel safe in what he is being asked to do?

Furlough is at the discretion of the employer, so no-one can really say.  Some employers allow furlough for those in high risk groups, even if there's work for those employees, others do not.

An employer can't make someone redundant for being 69 or having a medical condition but if those factors prevent someone from doing the job they are contracted to do, then they can.

Molly56

sharpe106 said:

You can obviously refuse to do the work. When you say next month do you mean into August? as then is when shielding is meant to stop. 

Job is potentially the first week of August. Our current decision is to refuse the work; I contacted the Health and Safety Executive with a query and received a very useful reply. Based on our own risk assessment, the fact he is in a clinically vulnerable group and workplace is not being made Covid secure we believe we are fully within our rights to do so.
Our next step is to potentially force a redundancy situation as his employer had already indicated he was not going to carry on but just need to check out how to do this and make sure there are no grounds on which it can be refused. We are anticipating that his employer will probably say he hasn’t got the money but know there are assets in the business. My husband is only employee and business is operated as a sole trader so am I right in thinking that the liability is not just limited to those of the business. Am anticipating there may be more questions on this topic as things progress....any advice would be appreciated, thanks 

sharpe106

A redundancy situation is for the employer to decide you can't force it. In basic terms it is the job that is made redundant, i.e. the position is no longer needed. Then the problem then is what happens to the job holder. That is when you may get redundant. Refusing to do the job is not redundancy.

 

You can refuse to do the work on health and safety grounds, but if the company are following the government guidelines and they dismiss you for refusing to attend work and you take them to court they will probably win, obviously if they have not then that is different.

 

Your best option is to talk to the employer and discuss the issues, but the unfortunate reality is that companies are going to have to get back to work or they won’t survive. From August you will no longer be eligible for SSP for shielding either.  

Jeremy535897

In answer to the question on liability, if the employer is a sole trader, his liability is not limited to business assets, but insolvency is not the real issue as there is a government backed fund to pay statutory redundancy for insolvent employers. If I understand the situation correctly, the employer owns a coach (or more than one possibly if the owner drives as well) that is driven by your husband. It would seem self evident that your husband's role can only be redundant if the employer sells up and retires.

Under the contractual agreement, whether written or not, both your husband and his employer have certain rights and obligations. Your husband's main right is that he are entitled to be paid for what he does. His employer’s right is to give your husband instructions about his job, such as when and where to work, and what to do while at work. There are certain rights that your husband is entitled to by law, and which don’t have to be included in the terms of agreement between him and his employer. These include a right to the minimum wage and rights to paid holiday leave.

If your husband refuses to work on the basis of inadequate health and safety provision, then the employer has the following options:

• agree with your husband adequate safety provisions so work can continue
• sell up and make him redundant
• dismiss your husband for not working and hire someone else

In the final option your husband would have to make a claim for unfair dismissal to an employment tribunal.

Molly56

Jeremy535897 said:

In answer to the question on liability, if the employer is a sole trader, his liability is not limited to business assets, but insolvency is not the real issue as there is a government backed fund to pay statutory redundancy for insolvent employers. If I understand the situation correctly, the employer owns a coach (or more than one possibly if the owner drives as well) that is driven by your husband. It would seem self evident that your husband's role can only be redundant if the employer sells up and retires.

Under the contractual agreement, whether written or not, both your husband and his employer have certain rights and obligations. Your husband's main right is that he are entitled to be paid for what he does. His employer’s right is to give your husband instructions about his job, such as when and where to work, and what to do while at work. There are certain rights that your husband is entitled to by law, and which don’t have to be included in the terms of agreement between him and his employer. These include a right to the minimum wage and rights to paid holiday leave.

If your husband refuses to work on the basis of inadequate health and safety provision, then the employer has the following options:

• agree with your husband adequate safety provisions so work can continue
• sell up and make him redundant
• dismiss your husband for not working and hire someone else

In the final option your husband would have to make a claim for unfair dismissal to an employment tribunal.

Thank you, your reply is most helpful. 

Picking up on some of the points....
there is just one coach that my husband drives; his employer has verbally told him that he was trying to sell the coach but has not yet found a buyer (and is probably unlikely to do so in current climate especially with coach operators having no work and market flooded with other coaches where companies are folding). 

His employer is not prepared to spend anything on making the coach Covid secure so unlikely on health and safety grounds / government guidance to be able to operate and get future work that is safe for my husband to do . 

Just prior to Covid and with little work on the books his employer suggested paying half pay for two weeks then no pay for forseeable future; there is no contract of employment in writing and therefore no specific reference to lay offs and short time working ( just found government guidance on this ) so assume from your comments that his employer should either still pay him full pay or minimum wage as a minimum. 

As the furlough scheme changes we are doubtful that his employer will pay the top up contribution as required given his earlier comments as not being able to afford it. 

With regards to holiday leave my husband has never taken his full holiday leave or got paid for it in all the years he has worked for his employer and has taken no leave this year so assume his entitlement for current year will be another addition to his redundancy payment. 

His employer conveniently avoids the subject of redundancy and as sole contact we have in the business we are reliant on him doing the right thing

All of the above seems to leave us in limbo.....am carefully trying to tread our way through the minefield and hoping not to set off any on the way. 

Any further advice is appreciated