Can anyone help me with regard to a colleague's situation?

My first question relates to her non admittance to a local government superannuation scheme and it is to see if she can acquire retrosprective admission.

Does the Employment Tribunal have jurisdiction over these matters? I helped her fill out her ET1 but the ET3 came back saying that it was submitted that the ET did not have jurisdiction to hear these matters.

Would the answer to the previous question be different if the employee's contract expressly stated that on commencement of employment they would be admitted to the local superannuation scheme?

Working under protest/breach of contract:

Around a year ago she had her normal hours (she had set hours week in week out since years) reduced because was told that she was a "casual worker". Like me she had mislaid her contract as she started many years ago (she got a copy of her contract after the reduction in hours). When she looked into this matter recently she discovered that like me - I had my status confirmed as contracted recently at the ET, she should also have been treated as a contracted employee so my question is:

Where an employee has not accepted changes in their working hours and is working under protest, can the employee bring any action for breach of contract even though they are still working? Is it too late to go under protest if you have gone along with changes because you are told misinformation about your status, but once you confirm that you believe your status is other to what you are being led to believe, can you then go on working under protest?

And finally...

Can a parity claim be made in respect of a female employee not on the grounds of gender? But on the grounds that she is being treated unfairly compared with other employees doing "like" work?

Many thanks!

Sorry about the long winded post above, in a nutshell my question is what are the remedies for a breach of contract when the employee is still employed but working under protest? This is in respone to have bonus payments withdrawn and hours reduced.

The employee has 20 years service.

Many thanks

I'm afraid the ET only has jurisdiction to hear a breach of contract claim where the employee is no longer employed. If the employee is still working, all breach of contract claims must be brought in court.

You can sometimes get around this by bringing a claim which the ET does have jurisdiction to hear such as a claim for unlawful deduction of wages contrary to s13 of the Employment Rights Act 1996. For example, if the employee thinks he/she has fixed hours but doesn't get paid an amount commensurate with those hours, that could be treated as a deduction. But it must be very clear that is what is being claimed from the face of the ET1.

The concept of 'working under protect' doesn't mean a lot in employment law. If the employer changes the employment contract either the employee accepts it or he/she treats it as a breach of contract and takes action accordingly. You can't go on working under protest forever, if the change is tolerated for too long it is deemed to have been accepted.

You can't make a discrimination claim except for discrimination due to a protected characteristic such as gender, race or age. You can't bring a discrimination claim just for being treated unfairly compared to other employees, if the unfair treatment is not due to the protected characteristic.

Hi Steampowered,

Thank you very much for your reply, I have a further question:

Does the ET have the jurisdiction to confirm that an employee's terms in accordance with their existing contract should be changed to reflect the terms of a comparator, where the male colleague enjoys enhanced benefits in respect of notice period, contractual holiday pay and contractual sick pay. This would be in respect of discrimination because of sex.

Separately, I'm not sure if I made it clear that her contract stated expressly that the employee would be automatically enrolled into the local government superannuation scheme, this did not happen (it didn't say anything about employee contributions being required). The employee is still employed but the employer is in breach of contract, does that mean the only remedy is through the civil court for this breach or does the ET have any jurisdiction in such cases where it is set out in the employee's contract?

Unfortuately there is a male colleague who also is being discriminated against with regard to terms and conditions, and I guess as there is not a protected characteristic he will have no remedy?

Many thanks again!

Does the ET have the jurisdiction to confirm that an employee's terms in accordance with their existing contract should be changed to reflect the terms of a comparator, where the male colleague enjoys enhanced benefits in respect of notice period, contractual holiday pay and contractual sick pay. This would be in respect of discrimination because of sex.

Yes, this would be a discrimination claim, which can only be brought in ET and not in court. You would have to prove that the reason for the different in treatment was gender. It is not enough just to prove that a man and woman were treated differently.

Separately, I'm not sure if I made it clear that her contract stated expressly that the employee would be automatically enrolled into the local government superannuation scheme, this did not happen (it didn't say anything about employee contributions being required). The employee is still employed but the employer is in breach of contract, does that mean the only remedy is through the civil court for this breach or does the ET have any jurisdiction in such cases where it is set out in the employee's contract?

In relation to the issue about working hours, you can easily get around this by phrasing it as a claim for unlawful deduction of wages contrary to s13 Employment Rights Act 1996, on the basis that the employee has not been paid for the hours she is entitled to be paid for under her contract.

In relation to the issue about the superannuation scheme, my understanding is that pension schemes are not treated as 'wages' for the purposes of s13. Hence you might have to go to court for this (although to be honest I might tack it onto the hours claim, the employer might not bother to raise the point about jurisdiction as it would be more expensive for them to have a parallel court case).

Unfortuately there is a male colleague who also is being discriminated against with regard to terms and conditions, and I guess as there is not a protected characteristic he will have no remedy?

The fact that the same thing is happening to a man undermines the female employee's case. If the same thing is happening to people of both genders, it will become more difficult to show that gender is the reason for the unfair treatment. There is no law against unfair treatment or discrimination generally, the only thing that is prohibited is discrimination due to the protected characteristic.

Pensions Ombudsman can decide upon such matters as superannuation scheme and force employer to make the necessary missed contributions if necessary. Speak to the Pensions Advisory Service first to make sure that it is something that can be taken up now.

Thank you Steampowered and Ericsbrother very much, as ever this is such great information, I will keep you posted on developments

Hi there,

Just a quick update, my colleague's claims as set out above are all going ahead to be heard at a full hearing. The only part of the claim that could be a problem is the fact that she works under protest but did not ever put it in writing, so the Judge is saying that if she wants it to be heard she needs to put down a deposit as it has a slim chance of success.

I would like to give her some advice please if possible, these are the circumstances:

She was off work for three weeks last year in August because a family member passed away. When she got back to work she was told that her hours were going to be cut in October as she was too hard to cover. She was distraught and objected but was told if she kicked up too much of a fuss she would have no hours (she was told that she was a casual worker). She said that losing her relative was bad enough but to lose her job on top would have tipped her over.

So because "they felt sorry for her" she was given back one hour in November, then another in January. She was happier as it seemed that she was claiming back her original hours but the giving of hours stopped in March. That month she asked for her contract as she thought she had signed one way back in 1996 but couldn't remember was was on it and she had lost her own copy. It stated that she was a part time employee "as and when required". She had built up regular hours on regular days and was really a contracted employee as she does the job as me and I had my status confirmed at the ET earlier this year as a contracted employee.

So she is trying to make a claim for the lost hours during the changes that were enforced upon her. But because her protest was not in writing, even because of these circumstances, do you think the ET would still find it hard to believe that she was working under protest?

Many thanks in advance

It may be worth a step back and fully thinking through why you think 'working under protest' is relevant. 'working under protest' is not really a legal phrase and does not create a claim by itself, although of course if the employer is giving her less hours than she is contractually entitled to then that would be a breach of contract (or unlawful deduction of wages, which as I have pointed out is a better way to phrase the claim given that the Employment Tribunal actually has no jurisdiction to hear breach of contract claims while the employee is still working). Is the employer claiming that she had accepted her normal hours being reduced?

What is the main claim about, and what is the new claim that the judge is requiring a deposit to take forward?

I'm afraid the ET only has jurisdiction to hear a breach of contract claim where the employee is no longer employed. If the employee is still working, all breach of contract claims must be brought in court.

 

Y

You can't make a discrimination claim except for discrimination due to a protected characteristic such as gender, race or age. You can't bring a discrimination claim just for being treated unfairly compared to other employees, if the unfair treatment is not due to the protected characteristic.

You keep forgetting sexual orientation, religion or disability?

You keep forgetting sexual orientation, religion or disability?

There is also gender reassignment, marriage and civil partnership, pregnancy and maternity and sexual orientation

Thank you for replying! To clarify there are a few parts to the claim:

The main claim is to have her contracted employee status confirmed as even with a part time contract stating "Part Time Employee" at the top, the employers are still calling her an "as and when casual worker". Over the years she established a fixed pattern like I did - the situation is exactly the same for her as it is for me.

The next large part of the claim is that she, like me, has a huge amount of unpaid holiday pay due as they didn't update their calculations when there were increases in statutory entitlement (since 2004). They have already admitted to around a third of it, of which instead of paying her at the time of discovery, they waited until the preliminary hearing and the Judge has enforced upon them an interim payment order for this amount (it's quite large - a few thousand).

As you suggested she put in a claim for unpaid wages for the hours she lost, as she states that she did not agree to the changes they made in October and as these hours had built up over a number of years so should be deemed as being her normal hours. This is the part of her claim that the Judge is requiring a deposit for as she did not make her objections in writing.

The employer is saying that as she worked the new hours, she must have accepted them since it was last October and now it is August, but they had been giving her more hours and when it stopped in January, she waited until it seemed there would be no more and that is when she asked for her contract. She filed a claim in May - within three months of the rediscovery of her contract (this was signed in 1997 - it had never been updated since then - it had been local government but the employer changed to an independent provident society, and then again last year to a charity all run by the same people and under the same name, they just never bothered to tell any of us what they were doing - we only found out by doing some digging on Companies House).

Back to the claim and one thing I should add is that she was phoned while she was off work grieving to be given the news of her hours cut, and that was it, there had been no three stage consultation with a grievance procedure, in fact she was completely unaware that they operated one.

To me this seems that they were aware of her protest, as they would not be giving her more hours unless she had objected to the previous cut, but it is bothering me that because she was greatly bereaved over the passing of her father, she did not think to put her objections in writing, she was simply talking to them and asking for more in a polite way as they had been threatening to her.

One thought I had was to suggest that she pursues the employer for this part of the claim in the county court, but if the ET Judge says it has a slim chance of success is this a bad idea? Would she be liable for a large sum for costs to the employer if she loses? The value of the breach of contract in that situation is less than £5,000. I have no idea how to start a claim in the county court, but have quite a bit of experience in the ET - I've got a fifth hearing in a couple of months time!

The risk of trying to bring a county court claim is that the employer may say it is barred because it could have been raised in the ET proceedings. If she wants to proceed with the wages claim I would probably do this through the current ET case. I'm not sure why the ET judge is saying it has a slim chance of success, but it is worth listening to that.

Hi Steampowered, thank you for replying, I think the best thing to do is to wait for the Judge's reasons and see how he sums it all up, but it seems that he was concerned that the protest was not made in writing.

I will keep you posted

Hi there,

I have a quick question, my representative is helping others now. In response to a fair question as to why a current employee (and new claimant) was given a new casual contract to sign despite being there under the same condtions and delivering the same type of work as me (a contracted employee) since many years, this is the response made by HR (they character assassinated our legal representative):

The respondent seems to be attacking the legal representative in an open way to an employee rather than wishing to discuss with that employee the issues between them.

How would one approach dealing with such comments either with the Judge or the Respondent, bearing in mind that these comments were made in a private preliminary hearing. Separately the coments made are a distortion made of what happened and other comments were made which were totally baseless and untrue.

Many thanks!

Why does it matter whether or not they like the legal representative? I'd be tempted to ignore it.

Thank you for your help, my only concern is that untruths have been stated to plant concerns in a claimant's mind, but reference to the Judge not having confidence in him is maybe something the Judge should be made aware of?

Many thanks again

The judge will not care about background mud-slinging. He is evaluating the legal position of the parties. It is be stressful when people make comments which are offensive but I think it is important to try and shut-out the background noise, you must avoid getting distracted from focussing on the key issues which underlie the dispute.

If you feel a response is necessary, I would keep it very short and factual - just something simple like 'Thank you for your letter dated x. I do not believe that the description you gave is a fair representation of the comments made by Employment Judge X. I have full confidence in Mr X who will continue to represent me. I look forward to resolving this matter amicably'. To be honest, if nothing turns on the critisisms, I would be tempted to just ignore them.

Thank you for your message, I think as you say it is better to leave it alone, it's easy to let indignation cloud better judgement - thank you again for keeping us on the straight and narrow!

Hi again everyone,

Just a quick question, if an employee works a regular session on a Monday night but every Bank Holiday the session is cancelled due to early closing, does the employee have a right to be paid what they normally earn that day even if the buiding is shut?

Also, if a studio is closed for maintenance for example, the employee who would normally take the class is not paid even though the closure is again no fault of theirs, so in my mind they ought to be paid their normal, established hours even if it is a Bank Holiday or closed for maintenance.

Would this be a claim for breach of contract for unpaid wages in the county court?

Many thanks in advance!

only if it says in the contract they get paid - it may be that the employer tells them they have to take holiday at these times, for example.

Hi Emmzzi,

Thank you very much for replying, this could be a problem as they are treated as self employed casual workers but over the years have established hours - they have an ET claim going through to get their employment status confirmed as contracted employees.

I have seen a contract for one of the "as and when" employees and it just says that on bank holidays they need to be available if they are required to work and that they don't get any extra remuneration.

The self employed instructors are paid holiday three months in arrears so if they can't work during refurbishment or bank holidays then they don't get paid and are subsequently paid less holiday pay.

Thank you

Sorry, I think this is a simpler way to explain my question:

If an employee is required to work on a pre-arranged basis to take teaching classes as set out on timetables published quarterly in advance naming the employee as the teacher and the employee is obliged to make herself available to teach the class and for whatever reason at the last minute the employer says I do not wish you to take a class is the employer liable to pay the employee for the class aborted?

Many thanks

Depends on the contract! There is no one universal answer.

Thank you for replying Emmzzi, but these particular people don't have written contracts, they are self employed but should be contracted employees as they are doing exactly the same job since many years as other contracted employees.