My wife has been employed by the local pub owner who took on the lease of the village shop three years ago. My wife was employed from the outset to work in the shop.

Since day one she has consistently worked over 28 hours a week at a rate above the NMW. She has been paying tax, NI, pension etc and has received holiday pay. However, she was never given a contract of employment.

The pub owner has now bought the land that the shop is on, and plans to demolish it and build houses on the land, meaning the shop will close. He is however going to open a small "shop" within the pub to sell essentials such as milk, papers, cigarettes etc.

The boss has told the staff nothing more than "I am closing the shop at the end of April and you won't have a job anymore", however he has failed to put anything in writing at all.

I have several questions which I hope someone can answer

1) The boss is suggesting that as he never agreed in writing to a set number of hours a week, the position was one of a "zero hours contract". However my wife has worked 28+ hours every week since she started. Am I right in assuming that the 28+ hours a week, in the absence of a contract are implied terms and those are the terms are legally binding.

2) Until as such time as he informs my wife in writing that he plans to close the store and her position is redundant, then legally she is still employed on the terms that she's worked to for the last 3 years.

3) Even without a contract of employment, my wife is still entitled to written notice of redundancy. How much notice is she entitled to, and should the shop close before that notice period expires, he then would still have to pay her in lieu of notice.

4) Unless he puts it in writing that the position is redundant, then is he legally obliged to pay her for the hours she would have been working for had he not closed the shop.

Any advice and answers to the questions above would be greatly appreciated.

Thanks

I'm not able to give you the answers you need but I expect that somebody who is able will be along later on today or tomorrow.

However I'm quite sure that one thing that your wife could usefully do would be to make sure that she has got a complete file which shows the amount of money that she has earned/how she has worked over the three years.

Also, he is obliged by law to provide her with a "statement of terms" at the outset of the employment and if he hasn't done that then already he is giving you an advantage.

Make sure that your wife assembles this file and also start keeping a detailed log of everything that happens in respect of this matter. She should keep the log off site.

I'm not able to give you the answers you need but I expect that somebody who is able will be along later on today or tomorrow.

 

However I'm quite sure that one thing that your wife could usefully do would be to make sure that she has got a complete file which shows the amount of money that she has earned/how she has worked over the three years.

 

Also, he is obliged by law to provide her with a "statement of terms" at the outset of the employment and if he hasn't done that then already he is giving you an advantage.

 

Make sure that your wife assembles this file and also start keeping a detailed log of everything that happens in respect of this matter. She should keep the log off site.

My wife has regular payslips, and the payments are made into her bank account so she is easily able to prove the number of hours she has worked since she started there.

You are broadly correct in your assertions

A Zero Hours Contract does not absolve the employer of the usual obligations and having worked there for more than two years your wife enjoys proper employment rights. Unless the employer plans to continue her employment at the replacement shop or in some other suitable equivalent role, then your wife's position will become redundant. Having worked there for three years, she would be entitled to proper consultation and if no alternative is available to the appropriate notice and at least the Statutory redundancy payment. In the absence of formalised hours, then the previous 12 weeks should be used to arrive at the correct averaged hours when calculating entitlements. If a full three years has been worked at the date of termination then (at least) three weeks notice should be provided. If this is not handled correctly then your wife would have grounds for Tribunal action

The one cloud here is that if the employer does deem the arrangement to be a ZHC then he might start to reduce the number of hours that your wife works prior to the closure in order to reduce the potential redundancy payment. This may depend on how clued up he is on the legal situation, but again, there may ultimately need to be a fight this on the basis of a flawed redundancy consultation and that may also be the time to pursue the matter (that Bankfodder has outlined) of the failure to provide a statement of terms at the outset of the arrangement. Such an action cannot be brought on it's own but it would sit alongside any potential unfair dismissal case and could potentially increase any award

I also agree about keeping detailed records of what happened and when, what was said by whom and who may have witnessed any discussions. It may be invaluable in the event of legal action as it certainly sounds as though the employer is either ignorant of basic employment law, or is choosing to try and work around his obligations

as you stae, there is a contract even though it is not in writing. The employer isnt going to tell a tribunal that he isnt going to pay out a redundancy because he has continuously broken the law and will continue to do so!

he cant claim that it is a zero hours contract because that isnt in writing so he would damage his arguments even further by going down that road.

So, let us assume that his verbal statemtn of shutting the shop down at the end of April is correct then this is the notice period (even though it isnt in writing) He should then calculate the redundancy based on contracted or average hours worked before he uttered this statement and then pay redundancy at the calculated rate ( lets say 3 weeks pay @ 28 hrs/wk) and holiday pay. As there is no contract that states the contrary we can assume that the holiday year start on the 1st Jan so she will be owed 1/3 of her 25 days (pro rata) annual leave pay less any holiday pay already received for the easter bank holiday.

Once you have worked this out then it is best to put this in writing saying this is what is expected and if he says that she should just go away now that is a further breach of employment law and will be entitled to another fortnight's pay. I cant see the employer being proactive on this so get your figures down an put it to him in writing. He would be silly to stamp his feet over this

update -

We sent the boss a strongly worded letter telling him that basically he has to pay redundancy money and that he must give adequate notice.

Within 48 hours he wrote telling my wife the shop was shutting in 4 days and she would be made redundant as there would be no work for her in the new shop in the village pub.

He then gave her notice that he would pay her 3 weeks redundancy notice. BUT because he hasn't given her adequate notice she is expected to work her two weeks notice in the pub training the staff there on how to do the job.

So my wife is going to get her redundancy pay, and basically two weeks more pay which he says is her notice period, but she has to work them training others to do the job he says doesn't exist anymore.

ah well... better something than nothing I suppose.

And of course it would be most unfortunate is she became ill as a result of stress and required two weeks off to recover........

I hope that the absence is not due to an injury at work.

so, he is paying 5 weeks pay? If not then she has to take the holiday accrued from the last couple of working weeks. That will be the equivalent of at least 7 days so only leaves 3 days to actually work.

He hasnt thougfht things out well nor researched his obligations has he? Redundnacy is paid after she leaves and is not part of any arrangement as that would be normal working.

You need to be clear o what the entitlement is as well rather than agreeing to any old tosh he decides on.