I am hoping for a little clarification on behalf of my brother in law who runs a small company with around 12 persons

who now has an issue with an employee who has assaulted another member of staff

and who he understandably does not want working there anymore.

Now all employees are on these zero hours contracts

my first question is can you dismiss / discipline persons on these contracts?

suggested he follow the company disciplinary procedure to be told there is not one so I am pretty sure that's not helpful!!

none of the employees have actual physical (paper) contracts zero or otherwise and am not sure this is correct?

it would seem there is no obligation for the employer to offer hours and if this is correct would this be a viable way of dealing with it

(i.e. just not offering anymore hours)

or would you be open to possible discrimination claims by continually telling the same person you don't need them to work?

Finally I think he really needs some assistance making sure he has the correct procedures and policies required by a small company and was thinking ACAS may be the best point of contact but can anyone else suggest any organisations that can provide support to small businesses as and when needed?

Thanks guys.

Assaulting another member of staff even on a zero contract would be gross dismissal and could be summery dismissed .

If there is no written contract it is not a zero hour contract!

Which means that he is not a company.

He is several employment tribunals waiting to happen!

In this day and age there is no excuse for the smallest of employers not to be able to work out what they need to do

- there are resources falling over themselves on the internet.

But there is a difference between advice and guidance, and support on individual circumstances - the latter is almost always at a cost.

If a member of staff has assaulted someone he is on some danger already.

The proper action is to suspend and institute an investigation,

leading to a disciplinary for gross misconduct if there is a case to answer.

And he potentially falls at stage one.

To suspend someone it must be on full pay.

But he isn't paying people when they aren't working.

But given this can't be a zero hours contract because it isn't in writing,

any challenge to his actions is going to have serious consequences if that person is aware of their rights.

It may be unpalatable for him,

but I would suggest a settlement agreement (which will cost money)

if he is seriously looking to avoid ANY trouble.

It's that or risk it.

Which he may get away with.

But he also may not, and that might cost more money.

All he needs is a claim at a tribunal.... And his bill will start to rise.

He URGENTLY needs to address his shortcomings as an employer.

Based on just these few lines, he has many of them.

Being an employer is not just a responsibility - it is a business cost.

Trying to do it on the cheap seldom works out well.

I would suggest he check to see if there is a small business advisory or network in his area - many have them.

But it won't solve all his problems by joining one - it will only help him to realise how many problems he has!

Everything you are saying makes absolute sense and it would appear from my initial conversation that the business seems to still be run as things were in the bad old days before employment legislation rightly provided workers with better protection.

I don't think the ways in which the company are being run are for any reason other than utter cluelessness however ignorance I am sure is no defence in the eyes of the law and I guess everything has ticked over to date because there have been issues such as this however I get the feeling he thinks this is still the 80's and you can sack someone in the Lord Sugar "your fired" manner.

I had suggested ACAS who I know provide training on certain employment issues such as discipline and grievance etc but will suggest he looks into your suggestion of an advisory group as you rightly suspect as I do that there are many issues that need addressing to comply with the legislation these days.

But back to the issue in hand for now and having managed an office previously I am aware of the suspension and any subsequent disciplinary proceedings and how these should be carried out but like you without a contract and set disciplinary procedure I am struggling to work out how this will work under the circumstances?

I am also however aware that he has a duty of care to all employees so as things stand there should be no way this individual can come back to work Monday and while your suggestion of a settlement is something I would agree with till this is resolved are there any laws being broken if he simply tells this person he is not offering him any working hours next week but this would not seem to be a long term solution and eventually this person needs to be potentially dismissed.

With regards to contracts I am guessing this is something that should be addressed straight away and provided to employees but presumably these will not be retrospective and only take effect from when they are signed or is that not correct?

One important question: How long has this individual been employed by the company ?

So if there’s no written contract are there also no payslips? NICs? Other stat deductions? Or do they simply get an envelope full of cash at the end of the week?

The person has been there between 3 and 4 years.

There are payslips and tax and NI deductions as there should be so no cash in hand work.

Well that’s something!

LOL Yeah I suppose there is no tax fiddle going on as tbh that would not have surprised me either...

I used to manage a call centre and we had an HR department to assist with this sort of thing as well as disciplinary procedures and policies so this is somewhat beyond me as they literally have nothing.

I mean how do you suspend / discipline someone with no contract as rightly pointed out by sangie and everything I know and learnt was from having a proper process in place and the support of an HR Partner.

I have pointed them in the direction of specialist help with a view to at least getting the basics in place but am looking for ideas of immediate remedial action that can be taken such as actually issuing contracts that might mitigate future issues but am not sure these can't be retrospective with regards to start dates etc.

Read this..... the section on “what is a contract of employment”....

https://www.citizensadvice.org.uk/work/rights-at-work/basic-rights-and-contracts/contracts-of-employment/#h-are-you-an-employee-or-self-employed

In every employment I’ve had an assault is grounds for instant dismissal.

Thank you for that I'll take a look.

I suppose the danger is that if they start handing out contracts now it will undoubtedly lead to people wondering why when they never had one before but I pretty much think that's unavoidable as they need to be done and I would imagine an employment lawyer is the best place to get these done or perhaps advice from ACAS as for example if someone starting five years ago I don't know if you put that as a start date or from present day.

I am sure there are lots of other considerations too and at very least a disciplinary procedure which everyone has access to.

One thing I haven't noticed an answer to is the fact there appears to be no obligation on the part of a company to offer work hours to those on a zero hour contract, is this in fact correct and is there a time limit as to how long that could go on for?

Read this..... the section on “what is a contract of employment”....

 

https://www.citizensadvice.org.uk/work/rights-at-work/basic-rights-and-contracts/contracts-of-employment/#h-are-you-an-employee-or-self-employed

 

In every employment I’ve had an assault is grounds for instant dismissal.

Not if, by that, you mean dismissal on the spot with no disciplinary.

That would be unlawful.

Everyone has a right to be heard

- and sometimes things are not always as straight forward as one might think.

What about someone who lashes out in anger after the other person called his mother/sister/ wife a **?

Or the person with a disability who had anger management issues in certain circumstances?

Or the other person lashed out first?

There is never a good reason for violence - but there may be a reason,

and it may be an understandable reason!

And even if it isn't acceptable

- the law is very clear, and dismissal on a whim without due process, even when appropriate, is not permissible.

OP,

I appreciate that it may raise questions in what is now appearing to be employees minds if he now starts changing things.

It will raise even more when someone takes him to a tribunal and he is trashed in it!

Not having a written disciplinary code does not prevent him using one.

Fair investigation, fair hearing, fair decision - it isn't rocket science!

Thank you for that I'll take a look.

 

I suppose the danger is that if they start handing out contracts now it will undoubtedly lead to people wondering why when they never had one before but I pretty much think that's unavoidable as they need to be done and I would imagine an employment lawyer is the best place to get these done or perhaps advice from ACAS as for example if someone starting five years ago I don't know if you put that as a start date or from present day.

 

I am sure there are lots of other considerations too and at very least a disciplinary procedure which everyone has access to.

 

One thing I haven't noticed an answer to is the fact there appears to be no obligation on the part of a company to offer work hours to those on a zero hour contract, is this in fact correct and is there a time limit as to how long that could go on for?

I did answer this.

There are no written contracts.

Therefore they are NOT zero hour contracts.

That places him in a very difficult situation because he is already in breach of the law.

If the EMPLOYEES are even slightly wised up,

he is about to be taken to the cleaners unless they like him a lot.

Holiday pay?

Pension?

Minimum hours?

Guaranteed pay?

Maternity and paternity rights?

Sick pay?

So his staff are currently employees

- he can't just sack them all and make them zero hours.

Well he could - but that's a very fast route into the employment tribunal.

I appreciate your view that he's done this out of ignorance, and I agree it's definitely not an excuse that the law will accept.

However, sorry, but I find it hard to believe that ANY employer can be so completely ignorant of the law as to fail to notice ANY of these things.

It sounds much more like a selective memory, ignoring things for as long as he can because he never expected to get called out on it.

But either way, he owes it to his employees to treat them fairly and honestly.

They are the people making his business work for him.

They are not a necessary evil.

They are the reason he's making money.

And it is, like anything else, a business expense that needs to be recognised.

Thank you for your response and to be honest there is nothing in there that I would disagree with.

My understanding is that they have things such as paid holiday, pensions, I doubt minimum / guaranteed hours, SSP payments but no company sick pay scheme however this would of course be discretionary anyway so I don't see this as a problem.

They are going to need to take professional advice going forward in my opinion as the status quo cannot continue for all the reasons you have given but the remedial actions required to be at the very least compliant with the basics of employment law are beyond what I can advise them.

One last question I have which is purely out of personal curiosity is without contracts are these people workers or employees?

Reason for asking is that when I was looking at the CAB link it calls zero hour contracted persons workers.

The actual situation itself seems to have resolved itself for the time being with the employee concerned texting one of the directors to advise they were quitting and not coming back but whether there are further implications to come is anyone's guess.

I guess I had this much easier with an HR department to advise me in my previous job and would not fancy having to sort all this lot out....

From reading the replies and looking at the link to info on contracts im leaning towards that the people are all employees, being employed by someone that needs a lot of advice before he has several tribunals and court cases brought against them

Thank you for your response and to be honest there is nothing in there that I would disagree with.

 

 

My understanding is that they have things such as paid holiday, pensions, I doubt minimum / guaranteed hours, SSP payments but no company sick pay scheme however this would of course be discretionary anyway so I don't see this as a problem.

 

 

They are going to need to take professional advice going forward in my opinion as the status quo cannot continue for all the reasons you have given but the remedial actions required to be at the very least compliant with the basics of employment law are beyond what I can advise them.

 

 

One last question I have which is purely out of personal curiosity is without contracts are these people workers or employees?

 

 

Reason for asking is that when I was looking at the CAB link it calls zero hour contracted persons workers.

 

 

The actual situation itself seems to have resolved itself for the time being with the employee concerned texting one of the directors to advise they were quitting and not coming back but whether there are further implications to come is anyone's guess.

 

 

I guess I had this much easier with an HR department to advise me in my previous job and would not fancy having to sort all this lot out....

In my view they are certainly employees. It is a common misconception that a contract needs to be written. The law assumes a contract is formed by the offer of employment and the paying / receipt of a wage. Howevercv that is the kicker. The law assumes an employment contract in the absence of written terms that state otherwise. So not workers - a zero hours contract MUST be in writing. And clearly not self- employed. So that only leaves employed.

If explicitedly (verbally!) stated for “zero hours” as part of the terms of a verbal contract : would it be possible to create a verbal zero hours contract?

If not, why not??

Of course, proving it (or what the courts would find the contract was) is another matter....... so, I’m not saying it is wise, but is it possible?

Because it states in employment law that zero hours contracts MUST be in writing

Because it states in employment law that zero hours contracts MUST be in writing

Can someone point me to the legislation or case law fir this, please.

I’m not saying it doesn’t exist, but I’d like to look at the precise wording ....

I'm sure I read it from the link posted and following other links from that CAB page on more info on zero hours contracts

I'm sure I read it from the link posted and following other links from that CAB page on more info on zero hours contracts

I can see where that link notes ALL employees should be given a written statement of particulars, within 2 months, but that isn’t quite the same....

It may of been on a google search. I'll try find it again

http://m.acas.org.uk/index.aspx?articleid=4468

It is hinted at in acas website