Are we doing this right

[godpikachu]

yeah, it does sound like your dad has the makings of a constructive dismissal claim there, plus maybe something for discrimination as well.

 

as for his T&Cs of employment, they look well dodgy, for example he is "contracted for 40 hours per week, dependant on work at hand", this is rather ambiguos as to its meaning, as it means both that he is guaranteed 40 hours work a week, but yet isnt.

 

as for some of the stuff you say hes had to put up with, i can see quite a few boo-boos in there, such as harassment (not allowing him to complete work, then putting someone else on his job after he has been sent away), bullying (making comments about him) and quite possibly ageism.

 

Before quitting though, i would suggest that he write a letter of greivance to his employers, and insist they make a written reply within 7 days of recieving it, mentioning in the letter he is giving serious thought to taking ET action against them for discrimination.

[godpikachu]

well, like i said, his contract leaves his actual employment status to the imagination.

 

on the one hand it states that he is guaranteed 40 hours work a week, but then on the other it states that he isnt, id wager they have deliberatley done this so that if anyone ever asks "do i get paid if im turned away from work?", they will answer no.

 

as far as i know, if you are contacted for X number of hours, and present yourself for work, but they turn you away, they are still obliged to pay you.

The only real way i can see they can refuse to is if they employ you on an "as and when" basis, which they clearly havent done as the contract itself specifies 40 hours per week.

 

What id suggest your dad do is give ACAS a ring tomorrow and have a word with them about it, as im not 100% sure on this.

 

 

*edit*

Also, from re reading your original post, and looking through the contract, it seems that many of the terms that are in there read to me like they still classify him as being self employed/sub contractor....which to me is weird, as you are either one or the other (as in, either employed by them or self employed), you cant be both simultainiously.

[godpikachu]

During the weeks that passed the employer ran a salary for my dad as normal, but there was no pay, just tax refunds- he did not make any SSP payments to my dad.

 

SSP is a statuatory RIGHT, his employer has an obligation to pay him it, especially so if his doctor has issued him with a sicknote.

More ammo for the tribunal there.

 

When he arrived for the meeting, the employer was in a meeting with somebody who was not an employee of the company, he may have been a customer, but it was a business meeting.

The employer concluded the meeting with this person by telling him he had to cut the meeting short as there was an employee waiting for him regarding a disciplinary matter, and went on to diclose to theis person the details of the meeting he was about to have with my dad.

When my dad went into this meeting he confronted the employer about his conversation, and he completely denied it. My dad then managed to call the guy back in and requested a business card from him, at which point the employer blew his top and said my dad was out of order and that he had no rights listening in to a private discussion. Not that he had a choice as you could hear it outside the office.

 

This is a complete, 100% breach of confidentiality, he had NO business whatsoever discussing the private matter with any outsider, much less a potential client!.

This is going to be interesting...

 

In the meeting the employer said that as far as he was concerned my dad had walked out of his job when he went home that day and that was that. He says he is entitled to no notice period, holiday pay, sick pay or anything else as my dad walked out. My dad told the employer he disagreed with this but the employer did not want to hear anything about it, the meeting was concluded.

 

This is complete and utter bull****. He was sent home after being told that there was no work available, but yet now they are taking it as a resignation..basically they are just trying to get rid of him and avoid having to pay redundancy, a contemptable tactic which is becoming more and more the norm of late.

He IS entitled to sick pay, a notice period and out standing holiday pay, plus he is entitled to have written reasons behind his sacking, These are basic obligations on the employers part and cannot be circumnavigated.

 

My mum phoned the employer later that day to ask about his sick note as they needed it back, the employer then said he had not decided if he was going to pay my dad any sick money and that my mum should call back Monday (today)

When my mum called back he said he still had not decided what he was going to do, but that in his opinion my dad had resigned.

 

He doesnt get to decide wether he pays sick pay or not, its an obligation.

Also, if in his opinion your dad has resigned, he is obliged to provide evidence of this resignation, which he will have trouble doing being as it never happenned.

 

It waspointed out to him that my dad has never written and oficcialy resigned. The employer also said my dad had resigned before christmas and that he was suprised to see him on the 5th January when he retuened, again my dad has never submitted a written resignation, as is required by the terms of his contract.

 

nail = in coffin

 

My mum then asked when he would be getting his notice pay, holiday pays etc, to which the employer replied, never.

My mum asked why, when he had sent everyone else on the ACS courses, he had not sent my dad, he said he was not spending another penny on my dad after what had happened with the national insurance penalty as my dad had refused to pay half the bill.

 

OH HO!, now we see the REAL reason for all this......

It has nothing to do with your fathers performance, it has everything to do with his employers vindictivness stemming from a mistake he made when doing his tax return, which he expected your father to cough up for.

 

My mum has to call back tomorrow to see if he has made a decision on the SSP and I have said to try and get the call recorded to see if he makes that statement again.

My dad has contacted ACAS and we have to write him a letter asking for him to advise what his decision is, they say that my dad has not resigned and that the employer must decide on either sacking my dad, putting him on notice or making him redundant. My dad has never has a verbal, written or final warning in his time at the company.

 

From what has been said above can anyone offer any advice?

 

Yes, definitely lodge a formal written greivance, stating everything you have stated here (including what the real reason for his sacking is) and INSIST on a written response within 14 days, also, nip down the the CAB and pick up a form ET1 and get ready to fill it in and file for an employment tribunal.

Once the boss fails miserably to explain his vindictivness, and the reason why he has decided that he doesnt have to abide by employment law, then fill in and file the form ET1 and wait for a tribunal date.

 

The way i see it, your dad has a cast iron case for unfair dismissal as well as varying degrees of discrimination and unlawful deductions from wage.

 

 

PS my dad has also spoken to the foreman recently who has confirmed that he has spoken to some of the other employees present on that Monday morning, and they have told him that the employer did tell my dad he had no job for him, can he request a statement from the foreman to support this fact? and is the foreman in a position to refuse this request?

[godpikachu]

thats spot on as far as i can see, id love to see the guys face when he reads it.

 

make sure though that you stress that you will only accept any furthur communications in writing, telephone calls will not be accepted and that if he wishes to arrange any furthur meetings you will only attend if accompanied by a witness, and will require a copy of the minutes giving on the day the meeting takes place.

 

*edit*

 

I d also mention the bullying and harassment he has been under from the boss as well, and state that this alone entitles him to a discrimination and bullying claim.

 

also, separate the final 3 options (sack, redundancy etc) into clearly defined bullet points, so that he knows his options and the consequences of them.

Edited March 10, 2009 by godpikachu
extra bit

[godpikachu]

Godpikacho-the letter clearly seeks a response IN WRITING so theres no defence on this if it doesnt come.

 

Soz-was left off but is there now.

 

i said that it should be clearly included in the letter so as to stop the boss type guy from ringing him in the meantime and discussing things over the phone, then simply sending a letter stating "furthur to what we discussed on the phone, those terms apply yadda yadda etc etc ad nauseum"....by the sounds of it the guy would do that sort of low down trick and then try to explain it away at an appeal/tribunal with his own version of events and the OP wouldnt have anything to back it up, unless the call was recorded somehow.

[godpikachu]

oh of course, if there is evidence it should be included, nothing wrong with mentioning it at this point though, as the bullying etc has been coming from the boss himself!.

[godpikachu]

so despite a reasonable request he is refusing to put anything in writing?, and is attmpting to blackmail you with the threat of criminal prosecution?, despite the fact that you did not take anything from the till.

 

I very much doubt the police would entertain the case, if they have already been given the CCTV or whatever of the incident, then they would have been to see you already, at the most, all he is entitled to for this incident is an apology for you losing your temper, and you are entitled to an apology from himfor him swearing at you.

 

You do have a good case for unfair dismissal there, as your wife was not made redundant, as her job still exists and is being done by someone else, plus the alterations to her working hours without consent represent a breach of contract.

 

Other than him saying "he needs your wifes contract etc", has he given a reason for wanting this paperwork?, if he doesnt have a copy of her contract then that is his fault for not checking this at the time he bought the shop, as to me it sounds like he fully intended at the time of purchase to replace the existing staff with relatives/friends.

Not being racist here but that is what asians tend to do when they own businesses, as they prefer family members as employees because they are people they can trust.

 

How long does he have left before the 28 days you have given him run out?, if the deadline has been and gone, then file your ET1 ASAP, as he has not responded as you requested him to (ie, in writing).

I would also make mention in your form that he is attempting to blackmail you into dropping your claim, this will be frowned upon.

[godpikachu]

yes, state that you wish this to be used as evidence, as such he will be provided with a copy of it as well.