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Employment related. Is this legal?

11 replies

IneedAsockamnesty · 29/09/2013 08:53

I had a coffee with a friend yesterday and she was very distressed as a result of a conversation with her boss,I'm going to try and include as much info as I can and hope I don't forget anything.

She has worked in the same place that has been owned by the same people the entire time she has worked there she has been there 10 years.

She has always worked the exact same hours on the same days every week her hours total 16 and she does 2days a week but the actual days she works never changes.

She has never had so much as 1 day off sick.her only absence has been paid holiday and 1 maternity leave. She has to take her holiday in week blocks is not allowed a day here and there so she refers to 2 days holiday as one week(obviously she knows its only 2 days) she is only allowed 4 weeks a year so 8 days. Her ML totalled 12 weeks.

She's currently 31(possibly 32) weeks pregnant and was intending to work up to the day before her due day.

She has 2 children one is 14 and significantly disabled requires full time care and attends a special school part time.

Her 16 hours are paid at the NMW so she does not earn enough to qualify for smp.

Her job is in a tiny independent shop

Right to the thing that has upset her she has a problem with walking she can do it but she is very slow its related to her pregnancy,her boss (carrying out the instruction of the owner) has told her she has to produce a fit for work cert or letter she cannot produce one as her consultant or gp are not happy to do so,so she had to start her ML ASAP

She's not so much bothered by this but the same day they told her this they also told her they are changing all her hours so if by some sheer fluke she gets a fit for work confirmation from next week (or when she returns) her hours will be broken up over 4 days instead of 2 apparently this is none negotiable.

This will result in her children being in childcare (one minder one carer) for 22 hours PW instead of the 19 they currently have and trying to replace the carer due to the current one being unable to cover the hours she has been told she has to take or what is more than likely having to quit working.

She has never been given a contract despite asking for one.

The owners justification for this appears to be that he feels she is a casual employee and even if she was not she has no contract so he can do what ever he wants.

She feels that crap work is better than no work and is very concerned about being able to get a new job.

I have explained to her that she cannot possibly be a casual employee and that custom and practise is relivant to her and him not giving her a contract is not something that goes against her as legally she has an implied contract and that its something that if anything would go in her favor not his.

But she cannot get legal aid for employment issues and she's very frightened that they just want rid of her.

OP posts:
MousyMouse · 29/09/2013 09:00

cab should be able help.
it sounds very dodgy but I'm not clued up about employment law.

IneedAsockamnesty · 29/09/2013 09:28

Around here it can take about 6 months to get an appointment with the CAB,they never answer the phone drop ins are over run and you can sit there for 3/4 hours and still not be slotted in.

All things she cannot do.

I'm tempted to pay for her to see a employment law solisiter but I know from previous experience she's very difficult to give things to especially if she knows they are expensive.

OP posts:
benfoldsfive · 29/09/2013 09:37

10 years in employment means she has vast rights as an employee. A contract is neither Heres nore there 1. Drs do not provide for for work notes anymore. They give sick notes with a date you will be fit for work. If she doesn't have a sick note she is fit for work 2. She had a disabled child she is there fore entitled to flexible working. 3. Due to the Length of time in employment they have to give reasonable notice.

First step I would ask from them to put it in writing. Being very clear about the changes and the reasons for them

lougle · 29/09/2013 09:37

If she is reporting for work and a GP is not concerned enough to issue a fit note, then she cannot be forced onto maternity leave. compulsory maternity leave can only be implemented at 36 weeks due to pregnancy related illness. In the meantime, if the employer feels that he cannot make the workplace a safe environment for her, he is free to suspend her until 36 weeks on full pay .

She has a right to written terms of service. If the business want to change her hours, they must consult with her and can only force it through if there are very good business reasons.

IneedAsockamnesty · 29/09/2013 12:28

From what I can gather she did her normal 2 days this week just gone.

On her next due to be working day she has a appointment with a consultant at the antenatal clinic so would be about an hour late for work and her gp has said he will leave that decision up to her consultant but from what she says they would be very happy to give her a sick note.

From what she has said the only reason for changing the hours is so cover for lunch breaks does not have to be paid for as she won't have any and they can leave her to be working by herself instead of with another staff member. I can't think of any health and safety reasons for her not to be there all she has to do is serve customers but the drama they gave her when she asked for a chair was shocking,to be allowed to sit down in between serving she ad to provide a docters letter requesting it and she thinks that has clouded things a bit as they felt it was a unreasonable accommodation.

OP posts:
Redcliff · 29/09/2013 14:45

Hi
You might be better off posting this in employment matters - a fair few good HR people hang out there.

IneedAsockamnesty · 29/09/2013 15:55

I couldn't find it Grin

OP posts:
Fozziebearmum2be · 29/09/2013 16:41

I work in HR and think she's been dealt a raw deal and may well have a case. Things like this really annoy me, so apologies for the length of the post!!

So taking each thing in turn:

Contract of employment-as a pp advised, whether she has a physical contract of employment is irrelevant. In employment law the courts would look at whether a contract can be 'implied' ie whether it looks to exist or not. I don't know all the details, but from what has been said I assume she has been 'treated' as an employee for 10 years ie her employer pays her tax/ni (she doesn't do her own tax return etc) and she has had regular work from them -ie doesn't need to ask whether to come back the next week like an agency employee may need to do.

If so (and I've massively simplified it above) she is an employee of theirs whether they would like her to be or not.

As such, and because she has more than 2 years service she has many employment rights. She basically defaults to the basic statutory terms and conditions under employment law I.e. Can claim statutory redundancy pay, sick pay, a notice period etc She is also protected under law against dismissal etc.

Incidentally, they should have provided her with written terms and conditions (essentially a contract) within the first 12 weeks of her employment and without this she can make a claim to the courts for their failure to provide it. She can always keep this info in her back pocket if they turn nastier.

Changing her Hours: They can change her hours, but would need to consult with her first, which means that they need to give her appropriate notice and reasons for the change. These reasons can't be related to her mat leave or her SEN child they need to be for a business related reason. (I.e. Are they changing their opening hours, efficiency reasons etc) I agree with pp, she needs to request these reasons in writing and challenge why she hasn't been given appropriate notice to change her hours.

Walking difficulties/early mat leave: in some circumstances an employer can force someone to go on early maternity leave, but only where they are off sick for a maternity related reason a few weeks before they are due. I imagine that if she was struggling to perform the role then they may need to have a conversation with her.

But the first thing they should do is to understand the condition and put what are referred to as 'reasonable adjustments' in place. This means that they are obliged to adjust the role (temporarily) eg give her a chair, reduce her stacking shelves duties etc, they've clearly not considered whether they can do this, or implemented anything ....

So, they are massively on dodgy ground by not 1- writing to the GP/consultant themselves to understand her condition and have just assumed they know she can't work and 2- forcing her to start on mat leave early without doing this. Appreciate they are a tiny employer, but they need to be able to show to a court that this has been considered.

Next steps:

Agree with you that she should seek some advice as otherwise it sounds like a case of the blind leading the blind as her employer sounds utterly clueless and don't know what to do. If CAB doesn't work, then she could try-calling a law firm directly, most of them will give their first hour of advice for free (you just ring up and ask and they'll put you through to someone) or, she could claim on her house insurance, which many people do. The other alternative is joining a union, which I imagine she's not in, I'm not sure which Union is associated with shop workers, but if she googles it she will find it. Some would be happy to take a non-member (if they start paying their subscription) some wouldn't, but it might be worth a try as a union would be a cheaper alternative to a solicitor.

Grievance-I would advise that her next steps is to write a grievance letter to her employer. Basically set out in writing all her concerns in a complaint letter and ask them to respond to each point. They (should) then hold a meeting to discuss this with her, and then she has a right of appeal. She may need some support to draft this (hence the union rep/solicitor etc) and a union rep would be allowed into the meeting (and any appeal) to represent her.

The point of a grievance letter is to formally document her concerns, some people worry about raising concerns, but in her case I don't think she has much choice.... And in my experience, employers are sometimes a bit rattled that they have been found out, but respect people who raise things.

As I said at the top, I hate things like this (hence the massive post!) and urge people to raise things when they are being treated unfairly! So best of luck and hope she gets it sorted.

benfoldsfive · 29/09/2013 18:16

Brilliant advice fozzie. Unite take shop workers

IneedAsockamnesty · 29/09/2013 18:48

I've just got off the phone to her.

She earns a few pence less than £100 pw so no tax or ni but she is always expected to just show up on time at the correct time with no asking or prompting every week.her wages come in a packet each week on the same day no payslip but her employer has routinely written letters ect for her to hmrc confirming he employes her and what the wages are. And there has never been a week when anyone has told her she is not required.

The shop is not reducing staff nor is it changing opening times the same hours will still be being covered just by other staff,everybody who works there will still have 16 hours,and her hours have already been advertised for a new person to cover.

She has spoken to other staff members who have said that the boss wrote to the owner pointing out that his salary and expected hours of work were so far below NMW he wanted the situation addressed apparently the owners answer was tough shit, so the boss has decided on a work to rule type thing so no covering breaks and the such like hence making sure nobody has any.

No consultation happened just her being told it was happening straight away. She said that they had told her first and said she can pick the days (as long as she works no more than 4 hours on any one day) as they are aware her child care is rather more complicated than anyone else's but it was made clear this is happening no negotiation and the lack of contract was referred to (but not in a we have done wrong way more a nothing you can do about it way).

Apparently previously when asking when she was taking her ML they also asked her exactly how long she would be gone and wanted it in writing ASAP when she told them she would be less than 26 weeks it caused a few issues as they were hoping she would be longer so her shifts would not be protected.

OP posts:
Fozziebearmum2be · 29/09/2013 22:02

What a crap employer...! They don't sound like they do anything fairly!! Shock

So she is an employee and the employer has previously confirmed this to a formal gov body. They're obviously just changing their minds to suit them.

Sounds like they've not done what they should do-ie no reason/notice given and gob smacking they've just changed her hours and advertised the ones she's not working. I'd challenge why can't she continue working her hours and they advertise those she can't work.

She needs to document everything (all conversations including the 'few issues' around her 26 weeks mat leave) and gather docs (i.e. copy of advertisement/letter to HMRC confirming she's an employee if she can get this). Take all these to solicitor/CAB/ union rep etc

Ps-people are allowed breaks, the law around this is called the working time directive and if she googles it it will tell her how long she is entitled to in accordance with her shifts.

Tbh-she sounds like she's better off out of there, but as its hard to get a job at the moment and to stop people like this getting away with this I would fight it. She has what sounds to be a very good case for a tribunal if she wanted to go down this route (it would take a while, but she's likely to get compensation in my view-(based on what I know)

Her main option from a tribunal perspective would be to resign and claim constructive dismissal and discrimination on the grounds of pregnancy. She can either resign and include her complaint in her resignation letter or continue to work there and raise a grievance.

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