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Urgent employment help needed with strange case.

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Hi all,

 

I am in need of some urgent help if possible. I have a bit of a strange case.

 

I will keep this as short as I can but hope someone can help.

 

I have worked for my current employer for 3 years. I have never been provided with a written contract / statement of terms. I used to get told at the drop of a hat there would be no work the next day which I know is unlawful. I have been underpaid my legal holiday entitlement since the start of my employment by around £3,000 due to how my employer calculates holiday pay. I am a surveyor and recently had my hours changed with no notice. My usual hours were 8-4 monday to friday but my boss has forced upon me a change being of that when I am on site i work 8-4 and if in the office i will have to work 9-5.30. this is being enforced regardless. I know that this change is not allowed to take place like this.

 

I recently wrote to my employer stating that I will work the new hours but under protest while I raise a grievence. It took a month for my boss to reply and this was while I was off sick. He also arranged a meeting which I could not attend as I was still of sick. I did not hear anything else after my return so I sent another letter giving 7days notice to resolve the issues of hour change, contract and holiday pay. The very next day I was suspended on full pay for gross misconduct. The reason for this is a follows.

 

Myself and a work colleague have set up a business which is in the same industry but not directly competing. My boss has know about this for sometime and has not said a word to us about this but has mentioned it to other people. It is clearly obvious that he is using this against us as I put in a letter asking for my holiday pay etc.

 

Does anyone know what my legal position here is?

 

Thanks.

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Are you an employee of the Company, does your employer deduct tax, NI etc. from your wages?

Or, are you working for them on a self employed basis making your own arrangements for tax etc?

 

If you are an employee; as you don't have a contract of employment / statement of particulars you should urgently ask for a copy of your contract of employment / statement of particulars and state that, if they cannot provide either, you require a copy of the Company handbook. State that you will need a few days to study them before they take any further action. (Do this in writing and send by recorded delivery as soon as possible.)

Your employer had a responsibility to issue a contract/statement to you years ago.

Acas - Employment contracts

 

When you receive whatever documents they send you; look for:

The disciplinary procedures and what constitutes Gross Misconduct.

Anything that says that you require permission to have another job/business.

Any language about working in the same industry.

 

You might want to get in touch with the 'other people' your Boss has mentioned your Business to.

If they would be prepared to write a statement about what was said and especially when, you could use these statements at a disciplinary meeting.

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Also include in the letter that you will also require copies of their supporting evidence for the Gross Misconduct charge,

See 4th employers question here:

Acas - Discipline

 

and that you are still awaiting a response to your Grievance.

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Are you an employee of the Company, does your employer deduct tax, NI etc. from your wages?

Or, are you working for them on a self employed basis making your own arrangements for tax etc?

 

If you are an employee; as you don't have a contract of employment / statement of particulars you should urgently ask for a copy of your contract of employment / statement of particulars and state that, if they cannot provide either, you require a copy of the Company handbook. State that you will need a few days to study them before they take any further action. (Do this in writing and send by recorded delivery as soon as possible.)

Your employer had a responsibility to issue a contract/statement to you years ago.

Acas - Employment contracts

 

When you receive whatever documents they send you; look for:

The disciplinary procedures and what constitutes Gross Misconduct.

Anything that says that you require permission to have another job/business.

Any language about working in the same industry.

 

You might want to get in touch with the 'other people' your Boss has mentioned your Business to.

If they would be prepared to write a statement about what was said and especially when, you could use these statements at a disciplinary meeting.

 

Hi,

 

Thanks for your reply.

 

Basically I am employed.

 

I do not have time to send a letter as my disaplinary hearing is for tomorrow.

 

I wrote to him before the suspension giving him until 4pm today to resolve all my greiveance issues that have been oustanding for weeks so today I did received through the post a letter today inviting me to another meeting which is seperate on Friday to discuss the greivance I raised. It says that no matter what the result of the disaplinary the greivance will be heard. The letters he sents is clearly written by a solicitor or something as he is stupid enough to just copy and paste and leave the quotation marks in. I do not understand why the meeting for suspected gross misconduct is before the greiveance when i raised the grievance first.

 

He has sent me a statement of employment which he said I can sign if I am happy with it but the terms inside are clearly different to how I have been working. For example it states that I will be paid no less than the minimum wage whereas at the moment I get £115 a day. It also says I can be laid off when ever he likes if there is no work. Clearly if I sign it he will reduce my wages so I am forced to leave. Also the contract is back dated to May 09. He sent a grievance procedure but it is basically something downloaded from the internet. There is no mention of not starting a business etc. I am aware that he has been sent a copy of a confidentiality agreement which I feel he is going to modify then ask us to sign it then in a few months sack us so we cant get his client etc. At the end of the day we are not competition but I do not want to sign any agreements as if he is going to sack me then we will have forced us to start to become his competition to survive.

 

No sure legally what he can and cant do

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have you been sent any of the evidence on which they intend to rely on?

 

If not you have the right to adjourn the meeting until such evidence has been provided to you

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Obviously, don't sign the contract.

They can't just change things and back-date them to suit themselves and without even consulting you.

Look at the link in post #3 to see what information should be included.

 

When the meeting starts, as andie says, ask for copies of their evidence and adjourn the meeting until you've had time to study it.

You should suggest that they use that time to find a copy of the contract that they were required to issue to you in the first months of your employment. This should have the date you started on it and the terms should reflect the way that things have been for the last 3 years.

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Hang on a minute. Have I understood you correctly?

 

Tomorrow you are attending a disciplinary meeting the reason for which is that they claim that you and a work colleague setting up a business in the same industry is Gross Misconduct.

 

Yet, in the statement of employment, 'There is no mention of not starting a business etc.'

 

What does it say in the disciplinary section in the statement of employment about Gross Misconduct? Usually there would be a non-exhaustive list.

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In case you check here before you go to the disciplinary meeting today:

 

Remember that the purpose of this meeting is to discuss their claim that you and a work colleague setting up a business in the same industry is, in their opinion, Gross Misconduct.

 

Ask for their evidence and a copy of your original contract and adjourn to digest it.

If they say that they don't have documentary evidence (a minority of managers believe that their personal opinion = employment law) you could express your amazement and ask why they called this meeting.

Keep the conversation focused on the meeting's purpose.

Every time they stray into other areas remind them what this meeting is for and ask if they have anything else to say about the actual subject.

The only relevant contract for this discussion is one dated at the start of your employment. The terms and conditions are those that have, in your experience, operated for the last 3 years.

 

 

It is not a meeting to discuss:

1. The new contract that they have back-dated to 9th May or any of the changes to your pay/work patterns contained therein.

2. A modified confidentiality agreement.

3. Your unresolved grievance. Grievance and Disciplinary procedures are separate.

4. Anything else.

 

If at any time you feel confused, intimidated or overwhelmed say so and request a break to gather your thoughts.

 

At the end of the meeting ask for a written decision within 14 days.

 

Good Luck!

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Hi Mariefab,

 

Thanks again for all your help and hopefully you will see this prior to my meeting.

 

My boss has sent me evidence which consists of printouts from almost two months ago of our website, free listing in yellow pages and a print of a page showing us as company directors. The free listing has now been removed form yell.com as he keeps on about why it is there. We removed it to show that we are not trying to be direct competition.

 

There is no mention of starting a business in the new statement of employment nor is there a mention in the disiplinary procedures. There is a list of things for gross misconduct but starting a business is not one of them. At the begining of the list it does say that it is a non-exhaustive list.

 

One other thing maybe worth mentioning is last year we setup a dormant cleaning company which my boss was also aware of as this was going to be something my partner and my colleagues partner were going to do. He has still never mentions any concerns over this. All he is worried about is this business which is in the same industry but not direct competition. The company is setup to look like a fully operation company but this was done so that a contract could be won to deal soley with an insurance company. This is not an area that my boss deals with.

 

One last thing is that were I am allowed a trade union rep or a colleague to attend, I feel that i have no one as everyone has known about the business before it was mentioned to us. I am aware that it was spoke about in a pub aswell one night. Everyone that I could ask to come in with me would have already formed their opinion as I know for a fact would be no help as they would fear for there own job. My company also does not recognise a trade union.

 

Thanks

Steve

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