VaTaNeN

My mate works for a small manufacturing company and pretty much runs the place as far as the machines go. They stiffed him a year or two back when they moved him from hourly paid and put him on salary (he was the only one who could set up the machines as so was clocking up too many hours for their liking) and ended up out of pocket.

Despite asking, he’s still got no contract and they have now turned round and given him three months notice to move onto shifts, with no increase in money it would appear – just after advice on how he stands?

Do they have to pay shift allowance or offer an increase in basic? Also, if they are supposed to offer more, will the fact he has not got a contract mean they can have him over again?

Thanks in advance for any input.

BlkKnight

don't hold me to this. .

By law your employers are supposed to give you a contract (after a small time period 3 months rings a bell). Any changes have to by agreed by both parties.

If the change in terms being forced by the e're to the e'ee are unagreeable, then it's constructive dismissal?

I suppose the e'er could go down the redundancy route - saying that your current position is no longer valid and a new one has been created (9-5 to shift - with change in title & slightly diff work spec) and they could offer you the job.

How long's he been there?

How would the e're react if he handed in his notice? (about 1 week as no contract)

john_s

iTrader: (1)

IANAL, but my take on it would be that without a contract, things are a bit less straightforward. As BlkKnight says, a statement of T's&C's of employment has to be issued by law within a short period (IIRC28 days).

There is no obligation to pay shift allowance or an increased basic pay for working shifts (though some employers choose to do so).

I'd say the big issue in question here is whether or not the change of working hours constitutes a major change to his T's&C's (and may depend what position he was in when hourly paid).

If it's not a major change, then he's probably stuck with it.

If it is, they can't force him to do it, but if he refused, I'd expect him to get a notice of redundancy shortly thereafter. It could be constructive dismissal.

If he moves onto working the new shifts, it will be deemed that he has accepted the variation to his T's&C's, though I believe he would be entitled to a period to try it out, though if he went down this route, I'd suggest he writes to his employer confirming it's a trial period to cover himself.

Remind him that he must follow the new statutory grievance procedure though if he does have issues with his employment... failure to follow them will result in a big (50%?) reduction in any tribunal award if he's successful.

HTH,

John.

ps - feel free to post / pm any further questions.

mart360

ifaik even if you dont recieve a contract, you can be deemed to have accepted it if you continue working..

if you dont agree to a contract change, it must be raised and objections noted, its then constructive dismissall.. if you continue to work, i believe this negates the cd claim..

we had similar... i was on sallaried but earnt a pile on ot.. so they upped my money/ band which meant no ot...

i still end up doing over time.. 18hrs working day once ...

its called taking the pi**

mart

VaTaNeN

Thanks for the replies.

He’s been there for four or five years. The main problem is that despite the constant training he’s given, none of the other workers can set up the machines properly. In the most part this is due to the fact that the employers hire numpties on minimum rates (usually agency) who have absolutely no idea about engineering and machine changeovers and set ups. The result is that my mate usually has to be in at least two hours before the day starts to get all the lines ready, and often has to stay over at the end to do line changeovers.

With shifts, the problem will become worse - Because he’s the only one who can do the lines; he’s going to have to be there at say 4am, to prep the lines for 6am. Then at 2pm when he should be off home, he’s going to have to stay over because nobody on the second shift knows what they are doing.

So from the posts above I’m wondering if he could claim that as he’s salaried and will get no extra cash for the extra hours, this would ‘constitute a major change to his T&Cs.’

One problem could be that they forced him into the same shift pattern last summer (The upshot was that he was regularly doing 18hr days and ended up suffering from exhaustion and stress – not good) so would this mean that he’s already accepted the change as he’s done it before, or, as the company has to give written notice each time they move to shifts, would this be deemed as a ‘new situation’?

Also, having been there and suffered from it already, might it be an idea for him to put in writing to his employers that after last years farce (worded differently of course!) he feels it’s only fair that some sort of shift allowance or ‘shift bonus’ was agreed.

At the end of the day, he is *very* good at what he does, but I don’t think the threat of leaving would do much as his boss is a real stubborn one and not really up for ‘talking things through’.

In fact, they did not even talk to the lads about going onto shifts – they just left a note on the canteen table!

Thanks for the help thus far

BlkKnight

if he doesn't mind working shifts, to it.

But work to rule! - no extra time outside the alloted shift. Always turn up on time, don't extend lunch break etc. Don't work any unpaid overtime.

warrenm2

I think the law is that you have to have a contract within 13 weeks - although this may apply to new starter only not to situations were the job changes....

555wrx

"A contract SHOULD be supplied after one month of employment. If no contract has been supplied, Employment tribunals have the power to determine the terms that currently exist ( even if merely custom and practise) as the contract of employment and these will be binding." Taken from FPB Business guide to employment 2005 edition


Tell your mate to approach ACAS. Im an employer, and Ive been fecked over by some employees in the past, so I know that the employer has less rights than the employee.
It sounds like your mates boss is a tyrant, so he deserves to get the ACAS treatment .

john_s

iTrader: (1)

Just a quick point to note... they can't legally have him working 18 hour days. The Working Time Regs insist on 11 (i think) continuous hours off work in any 24 hour period.

John.

VaTaNeN

Thanks for the replies. I just spoke to ACAS, but to be honest, not much help.

They say that although there is no ‘official’ contract, there is a ‘a’ contract, which would be made up from his current working customs and practices. Having served notice to go on shifts, the employer is effectively serving notice to change that contract, and in layman’s terms they said it is then his choice to accept it or leave!!

Furthermore, on the hours, they said that unless he had personally opted to work more than 48 hours a week (which he has not) then 48 was as much as they could make him work. However, they explained that the 48 hour rule is an average over a 17 week period. So technically they could make him work 60+ a week for several weeks before the average figure meant he could limit his hours.

I also enquired about the way they often hassle him at home on how to run the machines when he’s supposed to be ‘off’. They say that if there is no contract in place, then again it reverts to current custom and practice; I asked if that meant that because they kept ringing him at home last time when they ran shifts, that they would be entitled to do the same thing again this time - They said it did!

dba

they have to issue a contract as already stated,but then can impose whatever terms and conditions they like if they give 3 months notice.However,if these are unreasonable then he coluld claim constructive dismissal,but imo,shift work is not unreasonable.Just sounds like they are arseholes,the 3 months is supposed to be a consultation period to engae the employee,not just a notice period.

VaTaNeN

DBA - See what you are saying. If they ran the shift and said to him that you are either on 6-2, 2-10, or whatever, then that would be fine. However, they will try and make him come in *before* the morning shift starts, stay till *after* the morning shift finishes, and then once he’s got off home by late afternoon they will then start ringing him and try to put pressure on him to go back in again that day because the numpties can’t cope without him.