Employer does not comply with law HELP!!

[scedminc]

Hi,

 

I currently work as a building surveyor and have been with my exployer for almost 3 years. I have never been given a contract or a written statement of employement as required by law. I started working for my employer as a surveyor and my hours were 8am till 4pm monday to friday. My employer has now said to myself and the other surveyor in the company that when we spend all day in the office and do not go out onsite that we have to do alternate days of 8am - 4pm and 9am till 5.30pm. We are not getting paid any extra for this as we get paid a day rate. As far as holidays are concerned he pays everyone £4 per day for each day worked which I know to be unlawful. Nothing has been said about this as we fear for our jobs. Recently myself and a colleague have setup a company doing similar work not with the intention of stealing any clients that use the company we work for. Also we are targeting a select audience as apposed to everyone and anyone like the company i work for do. My boss is not aware of this new company formation but he has started to be very stressed and targets all his stress at us and I feel my boss is starting to single me out and treat me unfairly compared to other employees.

 

What I would like to know is what my rights are in terms of:

 

1. Starting my own business based on the fact i have no contract and it does not interfere with my daily work commitments and is done in my own spare time.

 

2. Do i have to change my hours how my boss insists.

 

3. My holiday pay and how to approach my boss

 

4. My employement contract or written statement of terms.

 

Thanks for any help in advance.

[42man]

Hi i'm not an employment expert as such but I would say that once you have been there (I think) for 12 months then this is as good as having a written contract....are there others there who do have contracts ?

[scedminc]

Hi i'm not an employment expert as such but I would say that once you have been there (I think) for 12 months then this is as good as having a written contract....are there others there who do have contracts ?

 

Hi,

 

Thanks for your reply.

 

Almost everyone has not got a contract. I think are about 3 people but again he does not comply with it in respect of holiday and these people are too afraid to say anything. It has gone on for years and i think people have just come to accept it. I dont want to accept it and now he is moving the goal posts as he feels like it and is picking on my self etc I want to know how I stand on each of my points above and how to tackle them.

[meols cop]

Try this:

Acas - Employment contracts

[WelshMam2009]

I think that you forming your own company may be considered a conflict of interest. Also, it is fairly standard practice to declare any other employment as a lot of companies, if you are working full time, will routinely forbid this.

 

Your view that this employment does not interfere with your work commitments may not be shared by others.

 

Sorry, but I really think you may be on dodgy ground with this...

[logicus.tracticus]

As below I'm no legal expert...either

Employment Rights Act 1996 (c. 18)

is a link to your employment rights, and as you have been with my employer for almost 3 years, you come under the scope of those acts.

now to your initial points and my thoughts

1. Starting my own business based on the fact i have no contract and it does not interfere with my daily work commitments and is done in my own spare time.

Since you do not at the moment have a contract it should make no difference, but bear in mind if the boss does draw one up he is liable to add a provision that you cannot conduct a business of a similar nature to that which he he employing you with, whilst employed by him or/and after you cease for a period of (x) years after, think the standard is about a year.

 

2. Do i have to change my hours how my boss insists.

that's a tricky one, yes if the request is reasonable, but he has to give notice well in advance, and I think also enter into negotiations, to take into account one parent families, carers ect (in larger firms this would be with union representatives) looking at the hours mentioned that would be classed as reasonable so doubt if you could argue that out in a tribunal, should you use "constructive dismissal " your boss is starting to single you out and treat you unfairly compared to other employees. It may be prudent to start keeping notes of instances where he has done this to cover your back so to speak.

 

3. My holiday pay and how to approach my boss

Think you will find holiday pay is covered in the contract of employment

 

4. My employment contract or written statement of terms.

Again, see answer to 1, but also there is a term used called "custom and practice" which I feel would be relevant in your case, I:E if you have been doing the job a certain way for a period of time, he cant all of a sudden say, he would like it done this way.

 

 

Hope this helps, only my thoughts though, having worked forty years for several employers

[logicus.tracticus]

As welsh man says forming your own company may be considered a conflict of interest, and could be grounds for dismissal...

[WelshMam2009]

Since you do not at the moment have a contract it should make no difference, but bear in mind if the boss does draw one up he is liable to add a provision that you cannot conduct a business of a similar nature to that which he he employing you with, whilst employed by him or/and after you cease for a period of (x) years after, think the standard is about a year.

 

Sorry, I have to disagree as a contract does exist. Furthermore, there is an implied requirement of 'faithful service' in employment contracts.

 

Now whilst you may not have received a written detailed contract as such, I presume that you did receive an offer of employment which you subsequently accepted.

 

At that time a contract would have been formed (offer/acceptance).

 

In my opinion a contract clearly exists, as otherwise you would not get paid every month!! You forming your own company could be in breach of the implied term of "faithful service" and could lead to disciplinary action.

[scedminc]

Hi Logicus,

 

Thanks for your repsonse.

 

1. Starting my own business based on the fact i have no contract and it does not interfere with my daily work commitments and is done in my own spare time.

Since you do not at the moment have a contract it should make no difference, but bear in mind if the boss does draw one up he is liable to add a provision that you cannot conduct a business of a similar nature to that which he he employing you with, whilst employed by him or/and after you cease for a period of (x) years after, think the standard is about a year.

 

Do you or anyone else know whether as I have already started the business and there is no contract of employment if he could add such a clause?

 

2. Do i have to change my hours how my boss insists.

that's a tricky one, yes if the request is reasonable, but he has to give notice well in advance, and I think also enter into negotiations, to take into account one parent families, carers ect (in larger firms this would be with union representatives) looking at the hours mentioned that would be classed as reasonable so doubt if you could argue that out in a tribunal, should you use "constructive dismissal " your boss is starting to single you out and treat you unfairly compared to other employees. It may be prudent to start keeping notes of instances where he has done this to cover your back so to speak.

 

Would this be reasonable as he has done this to reflect the same hours as the office staff and I was employed as a building surveyor. Surely he cannot technically say when I am out onsite I am a surveyor and then the days I am in the office I have to work office hours for the same pay.

 

Thanks again.

[logicus.tracticus]

Your right WelshMam2009 what I should have said was no written contract exists...hence my bear in mind bit..and confirmation to next post

[WelshMam2009]

Your right WelshMam2009 what I should have said was no written contract exists...hence my bear in mind bit..and confirmation to next post

 

No probs...and thanks for the clarification!!

[elche]

Sorry, I have to disagree as a contract does exist. Furthermore, there is an implied requirement of 'faithful service' in employment contracts.

 

Now whilst you may not have received a written detailed contract as such, I presume that you did receive an offer of employment which you subsequently accepted.

 

At that time a contract would have been formed (offer/acceptance).

 

In my opinion a contract clearly exists, as otherwise you would not get paid every month!! You forming your own company could be in breach of the implied term of "faithful service" and could lead to disciplinary action.

 

This is correct. The very first second that i turn up to work in my new job a contract exists - albeit an unwritten one.

 

So the contract issue is irrelevant, except to say that your employer is in breach of s.1 of ERA 1996 for no providing one within 8 weeks. I can never remember if the award for this is 4 or 8 weeks pay but it is not a free standing claim and must be 'tabbed' onto another e.g. unfair dismissal.

 

Your unwritten contract has numerous T & c's implied by a mixture of statute and common law amongst some.

 

One of these implied terms incumbent on the employee is that of 'a duty to act in good faith'. This means, amongst other things, not setting up competing businesses. This alone could lead to your dismissal.

 

The holiday pay is clearly wrong, enforcement of this would be in an ET for a breach of WTR 1998.

 

As regards unilateral contractual variations (the change in hours) there have been previous threads about this for example concerning pay but still relevant:

 

http://www.consumeractiongroup.co.uk/forum/employment-problems/193294-husbands-wages-reduced-20-a.html

 

Hope this helps

 

Che

[patdavies]

Setting up your own company can be seen as a breach of good faith - as stated above.

 

However, without a written contract, you cannot be 'held off' from operating this company from the first day after leaving your employer. IOW, without a written contract he cannot enforce any sort of non-competition clause.