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Everything posted by Offkey81

  1. This statement above is not grounded in reality, as there are clearly strong c.d cases. Your value system is slightly skewed in that case, just like your c.d figures are by unrepped claimants. Further, I dont have any issues with my data being challenged, I clearly stated it was anecdotal from judges (serving). Unfortunately, I dont live with the judges so you cant question them right now. I'll tell them to back up their claims with facts next time (the fools). Your making this a tad ludicrous, I cant really understand why.
  2. http://www.cipd.co.uk/NR/rdonlyres/18FC766D-4F3A-4F09-BA7A-FE071CFBCDAD/0/hrinformlawupdate201202.pdf gives a good explanation of caselaw in the area
  3. Im all out of option now I am afraid, hopefully the others currently viewing the thread will get back to you on the stuff I have confused myself on eg. notice. Good luck
  4. Hi shazza, Do you work 7 days a week? sorry if you answered it I just cant see it. Whilst I understand what your saying these situations are usually best resolved through negotiation (I know that sounds weak but hey ho). If you can put these points to them and get reasoned responses it may help. Someone else may have a better option or idea. As for notice, if its not stated in your contract its usually whats 'reasonable' in most cases I think, I may be wrong on that (because in cases where the change is not permitted by contract - seemingly unlike your case - it would usually be your statutory/contractual notice period but I am a getting a tad confused on this) - I know that doesn't really answer it so apologies. Again someone else may have a better idea than I on this Maybe I should jut add that we, as yet, dont now the contractual position of your colleague, her contract may be different to yours and may be why they are trying to please her more, she might even have some reasonable adjustments in place due to disability, hidden or otherwise that they canot discuss with you.
  5. Emmzi - The point I was making, maybe not that eloquently, is that this person could have a good case, they might not, but they could. ACAS cant/shouldnt be telling them the strength. Simply putting someone off getting professional advice with figures skewed by people who never receive professional advice is not the right way to go (but thats my opinion). This is even more important if they can get it free from insurers or law centres especially if this is something that THEY wish to take action on (not a decision you or I can make). The details provided ( although there is a bit there) does not cover there whole situation as the OP talks about back story etc. as such, to blanket answer the question without considering the finer details seems inappropriate to me. Especially when it is potentially not just a constructive dismissal case which the ACAS adviser MAY not have recognized or even be aware of. As I said on a previous thread, I am not here to argue or usurp your position as a regular poster, just to put my opinions forward which will hopefully give a rounder picture than just one person answering a question...........is that ok with you or should I just not bother trying to help.......I thought this was a community thing......I must be wrong.....although your signature indicates I was on the right track with the response I gave above
  6. No wonder there are not more people 'trying' to help others in here because if you do (and others dont agree with your approach 100%) it gets a bit weird - All my questions were valid and gives a better picture of the circumstances than just saying (its all about the contract) as my answer above shows. relax, I am only trying to contribute and not take your places........
  7. Hi Shazza, Your contracts a bit of a stinker I am afraid, covers the employer pretty well it seems. The question is an objective one, is it a reasonable change? that depends but they seem to be in a strong position. As Emmzi states, Customs and practice is difficult especially now we know there is an express term in the contract allowing a 'reasonable' change. At this stage, I would probably say its best to arrange a informal meeting with the boss and explain your concerns especially in relation to any duties you have towards your father, this is not a legal thing where you can force them but it would hopefully pull on his heart strings (if he has one) and may influence whether the change is a 'reasonable' one in their view. I would suggest this should be about persuasion. If you are an employee (and with your length of service) you have some protection if you wanted to raise a grievance about it as they couldn't just bin you off without a potential claim for unfair dismissal but if your employer is not nice they can make things, shall I say, more uncomfortable for you there, although they shouldn't. The only other option I could see is a flexible working request but that is simply a request to change your hours that they must consider, but they can always reject and can take 12 weeks or so to go through properly.....so could be a huge waste of time, but at least it gets them thinking about your issues and it and can be less likly to get a hostile response from the employer. Happy to answer any questions you have on the above. However, are you stating that you work 7 days a week? half days or not? as you may be able to use the working time regs to influence them
  8. Agree with Sidewinder and his proposals although, I dont think ACAS staff are not allowed to comment on strength of a claim..Constructive dismissals are very hard and should only be pursued if legally repped I would say. Although this 3% gets talked about a lot, the judges I have spoken to state 'as high as 40%', but this is anecdotal, they are at tribunal so does not include withdrawals, settlements or strike outs and the sides are repped. I would think this would be more a material detriment case under TUPE instead of a standard constructive dismissal see tapere vs west maudsley etc. However, TUPE is as complicated as constructive dismissals are difficult to win, I would seek professional advice if this was to be pursued in a tribunal or any drastic action is going to be taken especially in light of the above and fees etc. Call up your insurers car or home as you may be entitled to free legal advice etc. (sounds strange but is true)
  9. renegadeeimp - without further details I cant see how you can state that, but hey-ho. That is why I stated it depends on both contract and rate of pay unless I have not read something as I skimmed - also I would still like to see the evidence, not being funny or owt - I have added another link to post 8 about time work also can I nick your signiture
  10. renegadeeimp - please show me evidence. https://www.gov.uk/overtime-your-rights/overview https://www.gov.uk/minimum-wage-different-types-work/paid-by-the-hour also here are thee payments that can reduce nmw (although not applicable to the OP) and these apply in england aswell - http://www.nibusinessinfo.co.uk/content/deductions-and-payments-workers-do-not-reduce-national-minimum-wage-pay I wont go on because I dont wont to hijack the thread
  11. Answers are not 100% correct above. It all depends on the contract and rate of pay. You should never (some exceptions) get paid less than national minimum wage rates. They are currently 21 and over £6.31,18 to 20 £5.03, Under 18 £3.72, Apprentice£2.68. If, for example, she is over 21 and only on 6.31. She can do no overtime if it is unpaid (or work related training). However, her contract could allow her to do free overtime (or work related training) if she got paid over mimimum wage e.g. if I work 1 hour per week but get paid double national minimum wage 6.31 x 2 = 12.62, every week I can be required to do one hour free overtime if my contract says so, as 12.62 divided by two hours = 6.31 therefore I still meet national minimum wage even though I work 1 hour 'free' overtime.............I hope I explained that clearly enough wage rates as of october 1st 2013 are used above
  12. Hi Shazza, How long have you been working for your employer? this would effect your 'rights' somewhat and maybe how you move forward on this. Are these contracted hours and what does your contract say about hours (if you have one)? Are there any reasons why working different hours is difficult? e.g. care responsibilities etc. I would suggest trying to arrange mutually convenient days with your colleague. If this is a no-go, normally the first step is to discuss your issues with management, if this does not work you could then raise a grievance (a simple letter to your employer headed grievance) outlining your issues. However, depending on your answers to the first three questions raising a grievance could be dangerous (it shouldn't be but can be especially if your employer is not very nice).
  13. You need a years service for constructive dismissal and also need to be an employee and have to resign. Secondly, the agency worker regs state that you get the same rights to pay and holiday after 12 weeks but it shouldn't help you either. Also, those weeks only start running from 1st October so you havent completed them yet. The agency are probably doing this to avoid the regulations (maybe fairly). do other people work there doing the same job but on better rates? Further, being called self employed and invoicing doesn't make you self employed, there was an horizon or panorama show on a few weeks ago that explained this simply and very well - should be able to find it on iplayer - if you want a better explanation just ask but it ma not help with your current query.
  14. Your in a difficult position. Other than grievances I cant see any legal action you can take while still being employed.What would be your ideal outcome? as If you wanted to stay I could only think of trying to resolve this matter with all informally or by raising grievances, but as you probably know, this latter option can cause more conflict than it resolves. Instead of mediation, you may want to put forward the idea of arbitration, but this is to decide something and unless there is an issue to decide on it may not be appropriate. Other than that I am stuck. If you wanted to leave it may be a good idea to raise the idea of the compromise and outline the strengths of your case in order to negotiate more money (plus speak to the solicitor they should pay for).
  15. True agency workers have very differing rights to employees. The difference between the two (generally) in law is mutuality of obligation. You will probably find that the employees have set contractual hours with no lay off clause, therefore if there employer says we are not opening this week, they still must pay the contractual hours. Agency workers generally have no obligation to perform hours or be provided with them, therefore lacking that obligation mentioned earlier. Your contract should have the answer, you may want to take it to a Citizens advice burea..........just remember, if you are agency you can usually be sacked (or just not given hours) very easily with little or no comeback, whether you have worked there 11 months or 5 years. True agency workers cant claim unfair dismissal after 12 months (I add this purely as you talked about 11 months). There are new agency worker regs, giving you rights to equal pay and holidays come new year (some rights are already there e.g use of facilities), but I dont really know if they will help you if this happens in the new year, someone else may know or you can call ACAS. Also, many agencies are getting round this with sweedish derogation but this a different topic.
  16. Contract issue isn't really an advantage or disadvantage in your current case (unless it states you can charge for parking and have unauthorised leave without punishment). The only thing it applies to is if you haven't been given a written statement (or contract) ever, and you take them to tribunal for something else(say an unlawful deduction of wage), if it came out during the hearing then they would award you 2-4 weeks wages for not being provided with a written statement. Other than that, everyone employed has a contract, some are just not written, it is just the terms held within that which are important.
  17. It may not help you but is cetainly does not help them. One key issue in the employer/employee relationship is trust. I would say lieing about something to managment is very serious and in itself can amount to Gross misconduct (but that is not really for you to mention - as I doubt they would spea to you about it due to data protection etc.). I think you should follow the advice by Sarel and Colin, be humble, apologetic etc. explain if out of character. Usually the worse thing you can do is just blame it all on the other party, accept responsability for your actions but explain calmly what led to it and that you have an immpeccable work history (if you have)
  18. Always Appeal the decision (it shows you are reasonable and putting forward a good argument here should help you at tribunal),Further, you should note that not appealing can have implications on any award at tribunal for unfair dismissal (reducing it) while turning down an offer of reemployment after appeal or at tribunal is also likly to reduce any award (and awards are not high anyway). You should write down you arguments before you go ino the appeal and have them in front of you and be calm, always take someone e.g employee or trade union rep, ask for the reasons for your dismissal in writing (your entitled) and press them for this before the meeting oherwise "it will take away my right to a fair hearing", ask for minutes of the previous meeting and dont sign unless you agree, ask for any evidence they have against you and why this has not come up in the last 6 years if you have always been the same, what do performance reveiws state and ask for copies, alter any minutes and send back your version, ask for these things by email so the request is recorded and it is quick. But dont be aggressive when asking and try not to annoy or ask for things you dont really need as neither will help you in the long run. Finally, there are dismissals for - some other substanstial reason (legislative catch all). Does this come under it, I have heard stranger. However, if anything, isn't this a performance issue at best because you either commited misconduct or not, and if not, they are saying the performance of your duties is the issue. If this is the case it is vary rare that this would amount to gross-misconduct and a reasonable employer should give you opportunity to change, so you would expect to be given warnings and performance improvement plans, and if you dont do A in three months we will take this to the next level blah, blah, blah.
  19. To be honest, I am only familiar with cautions. check this link http://www.lawontheweb.co.uk/Road_Traffic_Law/Rehabiliation_of_Offenders_Act and also have a chat with nacro - as they are experts in this Advice on criminal records and resettlement The helpline provides expert advice about dealing with a criminal record and the practical challenges of resettlement - finding a home, work and the support you need. If you can, please telephone the helpline to talk to an adviser on 020 7840 6464 or 0800 0181 259 (for prisoners only). That way, we can be sure we have all the details we need to advise you properly. If you would rather email, please use the forms below. We'll get back to you as quickly as possible, usually within two working days. Criminal records Resettlement Criminal records We can advise you about what will appear on your CRB (Criminal Records Bureau) disclosure. We can help employers interpret the information on disclosures and advise on good policy and practice. More generally, we can advise people about whether, how and when to disclose criminal records and the implications of doing so, whether in an employment, education, insurance or other context. If you have an enquiry about criminal records, please complete and submit the form below. Owing to a fault, any form submissions made between 19 and 26 April 2010 were lost. Please call 020 7840 6464 if you sent us a form during that week and we'll be happy to help.
  20. What type of CRB? were you cautioned by the police or was it something else? speak to NACRO (google it) There is a chance that if this is a caution it may not show up (the rules changed a while ago), they used be weeded every 5 years so it may have been deleted. However, since Ian Huntley and the vile crimes he performed, cautions now stay on the police national computer for 100 years. Depending on the type of CRB it may not show up either as it should go to the police commissioner to decide whether the crime was relevant to be disclosed. Further if it is a caution, you can generally say no to the question of do you have a criminal record because it is not a convcition, however if asked whether you have a caution you must disclose. (there will be others who know more about this than i do but check out nacro) Will this effect your job, maybe, the problem is you can work somewhere for 11 months, be employee of the month every month and then be sacked without being given a reason and you cant bring a case for unfair dismissal. So if you are yet to start work for the organisation, it is very easy for them just to say no with little if any liability for compensation.
  21. I would also say to try and sort it through nice negoitiations with the employer for the same reason as above. Contractual obligations can become complicated because it is not just what your contract does (or doesn't say), very few contracts are so well drafted there are no areas for argument. Employment Contracts (more than other contracts) can be stretched to a certain extent, they also include terms not written in that contract (terms discussed at interveiw, those implied by law or working practices). If you are in a unionised enviroment they can have collective agreements which effect/change your contract even if you are not a member of the union who has agreed the change and you dont want it. You can vary your contract by agreement (whether verbal, written or simply through your conduct e.g doing something you are asked to do) and while there are rules to state that you should be re-issued written statements etc. if changes do occur, this doesn't happen often and make it difficult for anyone to say what obligations you have to live up to. I would hope that any personal circumstances you have that require this change are simply good enough for your employer to agree whatever the contractual situation, but look at the contract and the wording (the latter is all important as say, normal working hours, doesn't necassarily mean that you cant be asked to work outside these times, it probably just means you wont nomally work outside these times). And be aware, without a years service you have little protection from unfair disssmisal - whatever your contract states
  22. I came from the angle of dismissal but addressing it as a final written, then a lot of what I said still stands to argue your case. Then generally, your only option moving forward is to appeal it (to someone else - if organisation is big enough with available managers etc.) stating that the punishment is either too harsh or simply a breach of contract (implied term of mutual trust and confidence). The problem would then be that if they just said " no, we think it is a fair punishment" - you have two options which are just rubbish. 1. Take it, and potentially if dismissed in the future just due to a small infraction this incident will generally have no bearing (unless trying to show a course of unfair treatment (the eventual dismissal must be unfair as well as SarEl points out) or discrimination - on main strands e.g sex, race etc.). 2. Resign and try and claim constructive dismissal due to the breach of mutual trust. But I WOULD NOT ADVISE YOU TO TAKE SAID ACTION WITHOUT LEGAL REPRESENTATION - they are hard cases, you must resign in response to a fundemental breach or a number of smaller acts (last straw) and does this amount to that (I dont know), will you get a good reference (doubtful if they dont like you or resigning without notice), will you get a decent job straight away in the current climate, will there be a delay in benefits, do you have funds to pay a solicitor or have insurance etc. So many reasons these claims are hard........
  23. Your only entitlement to holiday comes from the minimum outlined under the working time regs and any extra granted under your contract. Wording of the contract is all important. The reason for this is that the bank holidays have been moved from saturday and sunday (crimbo and boxing day) to monday and tuesday. Contracts are written in advance and are generally not drafted well enough to cover changes in circumstances. If you can tell us the clause and the amount of holiday he has we may be able to help more. Also, is he working the monday and tuesday?
  24. There certainly appear to be some procedural errors as SarEl points out but generally companies are allowed to make a certain amount of mistakes if they are able to rectify said issues through a good appeal or do-over. When considering any allegation of misconduct (in order to dismiss) they must generally follow the principles as outlined in Burchill vs BHS - a fair investigation (even without the production of hard evidence) that allows the employer to honestly/reasonabally beleive that the person is guilty is enough to dismiss said employee. Therefore, if I thought they hadn't asked the correct people (very one sided), I would inform them by letter who I feel they should speak to or where the investigation is not fair. It is quite good practice to offer the meeting where you are based if head office is miles away. Meetings e.g Investigation, Disciplinary, Appeal should be held by diffferent people if possible so it can be got round, but again, I would highlight the error if I wanteed someone else to hold it or I was going to raise at tribunal to allege the employer acted unreasonably. If I thought CCTV images existed to prove my case I would have requested the images in writing or requested that they are not destroyed until this matter was resolved then if they were I would raise at the tribunal (it may influence). . Imagine I am an employer with only one employee, Do I have to hire a company to hold an investigation do the disciplinary so I can do the appeal (this is likly to be deemed unreasonable)
  25. Or check your car and home insurance - many policies have legal expense insurance for all manner of problems including employment law - solicitors tend to check this, but you might aswell see
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