Leaving employer - last 2 shifts cancelled, unpaid.

tgroom57

Hi everyone, please may I get some advice. 

My partner is employed with a company for the past 16 months, and is leaving this week.

He has asked for a copy of his contract on several occasions but they have never supplied him with one.  He did not receive a letter of employment when he started.

When he handed in his notice with them at the beginning of last week they said he had to give 2 weeks notice and he agreed to work this. They told him that if he worked the 2 weeks notice he was due 44hrs holiday pay.  

His last shift was meant to be this Thursday.  The employer sent a text message to him Wednesday afternoon (he works night shifts) telling him not to go into work Wednesday night and they would contact him later. They corresponded with him purely by text, no phone call and said that they had received a complaint and they had to take him off the site he was working at.   When my partner asked if he would be paid for these 2 shifts - 16 hours per shift -  they ignored him.

Now they are saying they won't pay for these 2 shifts - a total of 32 hours - and his holiday pay has mysteriously dropped to 33 hours.

Where does he stand with payment for the two shifts they have taken off him?

Thanks in advance.

Dakta

People with better brains than me will post, but the first question I'd want to know is if he's on a zero hour contract. 

I am not sure if a shift can be retracted once offered (probably) but zero hour contracts are by their nature very flex and the company may have the right to do this.

If it's a conventional contract and to be honest it sounds more likely), with agreed shifts as part of the contract (bear in mind he does have a contract even if not written)  then by asking him not to come in on the grounds of a complaint, this goes against the agreed terms of work and could (need to check) effectively be a suspension. This is a serious matter, and suspension should be paid. If it's a client complaint, this makes me less sure, as I know people can be let go on the grounds of client complaints/other substantial reason, however in such cases unless he was let go, he should still work the shifts agreed, reading a book or twiddling thumbs at HQ if the client doesn't want him. I wouldn't think they can just take an agreed shift away, because if it is a client that has complained and said don't send him, he's still got a shift with the company he actually works for. And if they won't have him, then we come back to effective suspension. 

They *can* let him go for any reason due to the time served as he has no real protection until the 2 year mark except for serious matters of discrimination against protected characteristic, as I gather you probably know, that doesn't translate to let go without notice he'd still be entitled to that.

There's a lot of fact checking need to do but my gut feeling is this should be challenged - if it;s not a zero hour contract.

Dakta

Appreciate my post was more question than answer but just wanted to give some avenues of thought, as if your partner is under a conventional contract (and by that I mean he's contracted to specified hours and shifts etc) then i feel you should take this further.

So first step should be establishing the contract, I suppose and i'm aware you have had difficulties with this. Regardless of the companies inability to produce anything in writing you do have a contract so what you could do is, in the absence of the company communicating with you is look to the past. Your partner has been employed for less than 2 years, but over a year, this is a significant period of time and someone on a zero hours contract would expect  to have a large number of negotiations or offers of hours in that time as the work would typically be adhoc and change a lot. If you have worked to set hours, and don't have the ability to turn a shift down, this would tell us even without a contract that you're not likely in a zero hours zone. 

I just want to cover that even though it's likely not applicable as it'd change the approach IMO.

Assuming its not zero hours, what can you actually do?

- well as above, if you can't prove your contract with getting one, look at the past and note what you've done to present and whether you can or could have refused shifts, also look for any documentation you have received, including messages between both parties about other matters that might give a clue. Include any documentation even if not a contract from the start of employment, such as texts, emails or letters exchanged when a job offer was made. These could indicate or validate terms of your contract. These where available are worth re-reading, and preserving.

- Contact ACAS. I don't rate ACAS, however despite the two year rules you are entitled to pay if contracted to do so, and they may be able to give more detail on what they've done. This may* (and i caveat that as I'm not entirely sure) be more down to small claims route as you would for missing pay as opposed to unfair dismissal etc which wouldn't fly due to the two year rule. I thin ACAS or even citizens advice could give you some vital next steps here in terms of what action could actually be taken.

- Make a formal request again, for a copy of your contract. A company should provide written terms of employment and it is reasonable to request this. This will likely as per past attempts fall on deaf ears, the purpose is more to give the employer an (albeit logged) opportunity to act reasonably. This will also give a signal to the fact you're both taking the treatment seriously.

- Formally ask for details with regards to the complaint made, ask whether you are suspended, whether there is an investigation taking place. Formally ask for specifics. 

- Raise a subject access request. Under data protection laws you have a right to access information the company holds on you, which should include details of the terms of your employment. You can request access to things such as HR records. Use this right,  though it won't be quick -  in most cases it will take the better part of a month. Raising the request is (normally) free, and the company not playing ball is a matter that could in many cases justify being reported to the ICO. The ICO have a template letter for making a request, it is fairly easy process and again, will signal that you are taking the matter seriously.


I have scoured for further information for employers telling staff not to turn up to shifts at short notice and I've not found any basis for which the shift should not be paid. Game on, in my opinion?

Undervalued

Dakta said:

Appreciate my post was more question than answer but just wanted to give some avenues of thought, as if your partner is under a conventional contract (and by that I mean he's contracted to specified hours and shifts etc) then i feel you should take this further.

So first step should be establishing the contract, I suppose and i'm aware you have had difficulties with this. Regardless of the companies inability to produce anything in writing you do have a contract so what you could do is, in the absence of the company communicating with you is look to the past. Your partner has been employed for less than 2 years, but over a year, this is a significant period of time and someone on a zero hours contract would expect  to have a large number of negotiations or offers of hours in that time as the work would typically be adhoc and change a lot. If you have worked to set hours, and don't have the ability to turn a shift down, this would tell us even without a contract that you're not likely in a zero hours zone. 

I just want to cover that even though it's likely not applicable as it'd change the approach IMO.

Assuming its not zero hours, what can you actually do?

- well as above, if you can't prove your contract with getting one, look at the past and note what you've done to present and whether you can or could have refused shifts, also look for any documentation you have received, including messages between both parties about other matters that might give a clue. Include any documentation even if not a contract from the start of employment, such as texts, emails or letters exchanged when a job offer was made. These could indicate or validate terms of your contract. These where available are worth re-reading, and preserving.

- Contact ACAS. I don't rate ACAS, however despite the two year rules you are entitled to pay if contracted to do so, and they may be able to give more detail on what they've done. This may* (and i caveat that as I'm not entirely sure) be more down to small claims route as you would for missing pay as opposed to unfair dismissal etc which wouldn't fly due to the two year rule. I thin ACAS or even citizens advice could give you some vital next steps here in terms of what action could actually be taken.

- Make a formal request again, for a copy of your contract. A company should provide written terms of employment and it is reasonable to request this. This will likely as per past attempts fall on deaf ears, the purpose is more to give the employer an (albeit logged) opportunity to act reasonably. This will also give a signal to the fact you're both taking the treatment seriously.

- Formally ask for details with regards to the complaint made, ask whether you are suspended, whether there is an investigation taking place. Formally ask for specifics. 

- Raise a subject access request. Under data protection laws you have a right to access information the company holds on you, which should include details of the terms of your employment. You can request access to things such as HR records. Use this right,  though it won't be quick -  in most cases it will take the better part of a month. Raising the request is (normally) free, and the company not playing ball is a matter that could in many cases justify being reported to the ICO. The ICO have a template letter for making a request, it is fairly easy process and again, will signal that you are taking the matter seriously.


I have scoured for further information for employers telling staff not to turn up to shifts at short notice and I've not found any basis for which the shift should not be paid. Game on, in my opinion?

I would agree, assuming they are not on a zero hour contract, the OP's partner has a strong argument that they should be either allowed to work the two shifts or receive pay in lieu. If that is not forthcoming it could be pursued either through an employment tribunal or the small claims court. Only they can decide if it is worth the hassle. There is no two year qualifying period for this claim.

Yes, they can of course make a subject access request and should eventually receive the information the employer holds about them. If it is not forthcoming the employer may get a slap across the wrist from the ICO but that, in itself, doesn't help all that much.  

Likewise, the failure to provide written particulars of employment is almost a moot point. Realistically there is no useful remedy for this failure. If they had a valid unfair dismissal claim (they don't) it could be added to the claim and might (at the tribunal's discretion) lead to an extra week's pay. It is not automatic and this claim cannot be made on its own.

It doesn't matter if you ask "formally", whatever that means, or in some other way! What matters is where, if anywhere, it leads and if there is a useful cost effective remedy if / when it doesn't happen. Sadly in many cases there isn't.

Dakta

By making a request formally, it means explained clearly and concisely, using reasonable language and using a method that cannot be repudiated. Just avoids the whole she said/he said/ i meant debate, you want specific info so you make a clear and unambiguous request that can also be referred to with ease.  (edit: from collins: 'A formal action, statement, or request is an official one.') - so basically it's a sincere request, requires action. 

So not just a text to your boss asking for tge details in slang or drowning in emojis. 

The request for the written particulars isnt to beat the company around the head with, it is so that you have, or at least make the best efforts to have,  the information you need to make good decisions. Knowing what your contract is can be helpful when determining and evidencing what it isnt. You will be expected to act as reasonably as you expect to be treat so it makes sense  to make the request as its within your rights, is a reasonable first step  and they should provide the info written contract or not. This does not mean they will, nor does it mean they will be punished for not doing so, but I always recommend covering the basics, establishing your position before making bold moves, and making every effort to look reasonable even if you're confident the sentiment won't be reciprocated.