Contract and Notice question

[andie_303]

Hi all

 

I need some help for my mum.

 

Basically she was made redundant in June 2009 and was offered a new job in July.

 

She has now decided she wants to leave this job - her boss is a bully and I hate to see my 60 year old mum cry cos of what he says and does to her. She's worked all her life from 16 and this idiot that must be no more than 30 thinks he's the best thing since sliced bread (breath andie!!)

 

Anyway - she was given a contract at the end of August however she has not signed it and neither have the company.

In looking at the contract it is very basic and for whatever reason she didn't sign it - she still has both copies and both are unsigned by the company.

 

This week all has come to a head - her contracted hours are 9 to 5.30 monday to friday (with the good old and "any other hours from time to time as needed by the business") however she never finishes before 6.30 as her boss will not let he go until all the books balance and the work he has given her that day is done on wednesday the boss would not let her leave the office until 9.15pm!! - she rarely gets her contracted 1/2 hour lunch break as he loads her with so much work.

 

He has now said that she will have to work saturdays as well in order to complete the work he needs her to do.

 

He is a bully and very abrasive - he doesn't ask he demands and threatens his staff.

 

My mum decided that she'd had enough so told them today she wasn't happy and was going to leave.

 

Now here's the stinger in the tale - he wants at least 6 weeks notice - he says if she doesn't give him it he will sue her!

 

Now the 6 weeks notice is in her contract but let me put it into context of how this is so weighted to the side of the employer.

 

The termination clause is:-

 

During the first 3 months of employment the employer may terminate the employment with 1 days notice and the employee with 1 weeks. After the initial 3 months of employment the employer may terminate the agreement with 1 weeks notice to the employee. The employee may terminate the agreement with not less than 6 weeks written notice in the first year.

 

Now as stated previously this contract is unsigned by both parties so surely is not binding?

 

She basically wants to tell this bully to stick his job where the sun doesn't shine - well I know mum's don't say it like that but thats what I'd love her to say!! - but she doesn't want to get sued over it.

 

Can anyone help??

[citizenkain]

been in that situation myself,tell ya ma to go on the sick and dont go back,thats what ya do with bosses like that:D

[andie_303]

Thanks CK,

 

I told her she should feel an attack of swine flu coming on - they're not even checking at our doctors you ring and they send you a prescription

 

She's trying to avoid doing this as she has really high integrity but if he is serious about suing her whilst still making her life hell it is probably her only option.

 

It's within his best interest as well for her to do that cos if I see my mum cry again cos of some jumped up idiot I swear I won't be responsible for my actions!!

[mariefab]

See below, especially 2 & 6.

 

Employment Rights Act 1996 (c. 18)

[andie_303]

Hi Marie

 

Thanks for the pointer but I'm a little confused

 

Rights of employer and employee to minimum notice

 

(1) The notice required to be given by an employer to terminate the contract of employment of a person who has been continuously employed for one month or more—

(a) is not less than one week’s notice if his period of continuous employment is less than two years, in their contract they state 3 months the employer has to give 1 day - does an illegal clause make the contract null and void (even an unsigned one)?

(b) is not less than one week’s notice for each year of continuous employment if his period of continuous employment is two years or more but less than twelve years, and

© is not less than twelve weeks' notice if his period of continuous employment is twelve years or more.

 

(2) The notice required to be given by an employee who has been continuously employed for one month or more to terminate his contract of employment is not less than one week. ok not less than a week - she would give one week but as her contract says 6 would she have to agree to this?

 

(3) Any provision for shorter notice in any contract of employment with a person who has been continuously employed for one month or more has effect subject to subsections (1) and (2); but this section does not prevent either party from waiving his right to notice on any occasion or from accepting a payment in lieu of notice.

 

(4) Any contract of employment of a person who has been continuously employed for three months or more which is a contract for a term certain of one month or less shall have effect as if it were for an indefinite period; and, accordingly, subsections (1) and (2) apply to the contract.

 

(5) Subsections (1) and (2) do not apply to a contract made in contemplation of the performance of a specific task which is not expected to last for more than three months unless the employee has been continuously employed for a period of more than three months.

 

(6) This section does not affect any right of either party to a contract of employment to treat the contract as terminable without notice by reason of the conduct of the other party. am i reading correctly that she can terminate the contract without reason due to his unreasonable behaviour?

Sorry if i seem a bit thick but that isn't really all that easy to understand.

 

Thanks again

[teaboy2]

companies can not place clauses that contradict that of employment laws in to an employment contract. in your mums case she only has to give 1 weeks notice minimum. the 6 weeks demand by the employer (who you have grounds for constructive dismissal against) are irrelevant, as a contract can not be outside of the law. Same with them saying they can give you 1 days notice, that is in breach of employment law, unless it is terminated as a result dismissal.

 

Your mums employment contract is not inline with the law therefore its not a legally binding contract, so if he tried to sue your mum hed end up losing.

 

Other question id like to ask is - Is your mum working on a salary or an hourly wage?

 

Because if its salary then yes she will have to work a few extra hours without pay, but those hours have to be reasonable I.E an hour here and an hour there or a few minutes after work to finish up etc. IF its hourly wage then they would have to pay her overtime an be no more then 48hrs worked in total per week. Either way its your mums choice if she stays back after her working hours for the day are finished not that of the employer. Basically tell your mum to leave work at 5:30pm everyday. she does not have to work saturdays as that is her choice too so all she has to do is say no and the employer cant do anything.

 

Has your mum placed a grievance against this man to higher mangement? because thats the first step she should take before taking tribunal action.

 

p.s yes your mum has right to terminate contract without notice on grounds of his conduct/behaviour

Edited November 6, 2009 by teaboy2

[BeauBrummie]

companies can not place clauses that contradict that of employment laws in to an employment contract. in your mums case she only has to give 1 weeks notice minimum. the 6 weeks demand by the employer (who you have grounds for constructive dismissal against) are irrelevant, as a contract can not be outside of the law. Same with them saying they can give you 1 days notice, that is in breach of employment law, unless it is terminated as a result dismissal.

 

Your mums employment contract is not inline with the law therefore its not a legally binding contract, so if he tried to sue your mum hed end up losing.

 

Other question id like to ask is - Is your mum working on a salary or an hourly wage?

 

Because if its salary then yes she will have to work a few extra hours without pay, but those hours have to be reasonable I.E an hour here and an hour there or a few minutes after work to finish up etc. IF its hourly wage then they would have to pay her overtime an be no more then 48hrs worked in total per week. Either way its your mums choice if she stays back after her working hours for the day are finished not that of the employer. Basically tell your mum to leave work at 5:30pm everyday. she does not have to work saturdays as that is her choice too so all she has to do is say no and the employer cant do anything.

 

Has your mum placed a grievance against this man to higher mangement? because thats the first step she should take before taking tribunal action.

 

In addition to what teaboy has posted here. If your mum is on a salary can she work out the actual rate of gross pay per hour---if it is less than £5.80 then the employer is breaking the law in that direction too.

 

I agree the terms of the "contract" regarding Notice Periods would not stack up at an ET and the employer would lose.

 

Beau

[mariefab]

You might want to trawl through the rest of the contract to see if he has breached any of the other terms himself.

Otherwise a resignation letter highlighting his bullying manner and making her work more than 48 hours per week, in breach of the Working Time Regulations, may discourage him somewhat.

 

IF (and I'd agree that it's a big if because I can't imagine that a court would look to kindly on a contract that includes such disproportinate differences between the notice required by the employer and the employee) he tries to sue her, for just giving one weeks notice instead of six, he'd only be able to claim any extra provable costs for the remaining five weeks.

 

Googling suggest that employers generally don't go down this route.

 

Damages for breaching notice periods

[andie_303]

Thanks for your help guys, she is salried but I have told her to work it out as Beau advises.

 

I believe that as she has only been there for just over 3 months constructive dismissal is out.

 

Can I just clarify that as he has broken employment law with the one day termination as it points out in (1) should be minimum 1 week - that would invalidate the whole contract as it is an illegal clause.

 

(2) states that notice period once over a month employed is not less than 1 week so she can offer a week without fear of being sued for breach of (unsigned) contract?

 

and (6) am I reading correctly that she can terminate the contract without notice on grounds of unreasonable behaviour.

[teaboy2]

Thanks for your help guys, she is salried but I have told her to work it out as Beau advises.

 

I believe that as she has only been there for just over 3 months constructive dismissal is out.

 

Can I just clarify that as he has broken employment law with the one day termination as it points out in (1) should be minimum 1 week - that would invalidate the whole contract as it is an illegal clause.

 

(2) states that notice period once over a month employed is not less than 1 week so she can offer a week without fear of being sued for breach of (unsigned) contract?

 

and (6) am I reading correctly that she can terminate the contract without notice on grounds of unreasonable behaviour.

 

thats all correct.

 

she should still look into the contructive dismissal and if she cant she still got the bullying along with victimization if its only her hes treating like this.

[andie_303]

Teaboy you are a star - scales duly tipped - thank you.

 

will keep you informed of the progress - he is making her go in tomorrow so she is going armed with the employment rights act and your advice.

 

We will see what happens.

[teaboy2]

your welcome andie.

 

hope it goes well for your mum. but judging by what you said so far about her employer, i doubt hell take it well. but on the bright side, if he wants to go down that path, he'll only make it worse for himself. Plus you have cag fully behind you.

[bankruptZW]

I am facing a very strange situation ! aswell !

 

I applied for a job and was offered it by a competitor, then submitted my resignation on Friday and my employer rejected my resignation and offered to counter offer then we reached a deadlock, we then agreed that we would discuss further on Monday, and still failed to reach an agreement i then told him i was taking up the other offer from the other employer. He immediately told me I was under suspension because i had been sending work emails to my personal email address relating to work that i would use when i join the next employer. I was then told to leave the premises and not take any of my belongings or speak to anybody in the work place and that I will be sent a letter in the post detailing the reasons for my suspension, of which then i would be allowed to start any communications. Today (Tuesday 17th) I received a phone call from one of the junior managers asking me to come to work to discuss the issue and i advised him that i was as not feeling too well i needed to see the doctor so i couldnt make it ( I believe all because of the stress caused by these aggressive discussions at work). I advised him i was not allowed to talk to anybody until i get a letter in the post explaining the reasons for my suspension as advised by the Director. Later in the day I then got a telephone call from a security firm that allegedly has been appointed to investigate this breach- he sounded very intimidating and I advised him that i didn’t know who he was and could not just come in and discuss with him without anything in writing from my employer - Director. I than rang my Director to ask him what was happening and he said he had passed my details to this security firm to pursue the case and he wanted me to come to work. i then requested for everything in writing which he said he will do.

How do i stand legally as I think they want to dismiss me immediately so that they don’t pay me for my notice period , unfortunately i had given them 6 weeks as opposed to 4 weeks required in my contract.

Is this a police matter - have i breached the law in any sense ? ( i have information that i could use for my next employer but haven’t used any of it). I still could have done this anytime as i had a company laptop about a year ago then refused it.

What would you advise me to do ? i have an appointment at the doctors for Thursday am due to this stress what should i tell my employer ?

Do I have to go in and see them even if they have not given me detailed information on my suspension.

I have never received any disciplinary action in the last 2.5years ever since i have worked for them - i have been one of their best employees.

Can i also comment on my fear of going into the work place as they spoke to me in a very demeaning and dehumanising manner causing me to be stressed- i dread to bare the atmosphere with my Director and this Security firm they have hired.

(the director has already apologised to talking to me in a demeaning and dehumanising manner- but i want to use this against him ).

Please advise on the best way forward.

[bankruptZW]

I am facing a very strange situation ! aswell !

 

I applied for a job and was offered it by a competitor, then submitted my resignation on Friday and my employer rejected my resignation and offered to counter offer then we reached a deadlock, we then agreed that we would discuss further on Monday, and still failed to reach an agreement i then told him i was taking up the other offer from the other employer. He immediately told me I was under suspension because i had been sending work emails to my personal email address relating to work that i would use when i join the next employer. I was then told to leave the premises and not take any of my belongings or speak to anybody in the work place and that I will be sent a letter in the post detailing the reasons for my suspension, of which then i would be allowed to start any communications. Today (Tuesday 17th) I received a phone call from one of the junior managers asking me to come to work to discuss the issue and i advised him that i was as not feeling too well i needed to see the doctor so i couldnt make it ( I believe all because of the stress caused by these aggressive discussions at work). I advised him i was not allowed to talk to anybody until i get a letter in the post explaining the reasons for my suspension as advised by the Director. Later in the day I then got a telephone call from a security firm that allegedly has been appointed to investigate this breach- he sounded very intimidating and I advised him that i didn’t know who he was and could not just come in and discuss with him without anything in writing from my employer - Director. I than rang my Director to ask him what was happening and he said he had passed my details to this security firm to pursue the case and he wanted me to come to work. i then requested for everything in writing which he said he will do.

 

How do i stand legally as I think they want to dismiss me immediately so that they don’t pay me for my notice period , unfortunately i had given them 6 weeks as opposed to 4 weeks required in my contract.

 

Is this a police matter - have i breached the law in any sense ? ( i have information that i could use for my next employer but haven’t used any of it). I still could have done this anytime as i had a company laptop about a year ago then refused it.

 

What would you advise me to do ? i have an appointment at the doctors for Thursday am due to this stress what should i tell my employer ?

 

Do I have to go in and see them even if they have not given me detailed information on my suspension.

 

I have never received any disciplinary action in the last 2.5years ever since i have worked for them - i have been one of their best employees.

 

Can i also comment on my fear of going into the work place as they spoke to me in a very demeaning and dehumanising manner causing me to be stressed- i dread to bare the atmosphere with my Director and this Security firm they have hired.

(the director has already apologised to talking to me in a demeaning and dehumanising manner- but i want to use this against him ).

 

Please advise on the best way forward !! i need some help

[elpulpo]

Without being too inquisitive. Is the nature of the work you do such that you think it likely that your employer would engage the services of a security firm to investigate the fact that you've sent work email to a personal email address?

This all seems very dodgy.

In fact, unless you work for MI5, their claim smells of male cow poo.

[teaboy2]

firstly the security firm has no legal powers therefore they can only investigate the matter and report back to the company. However they can not force you to cooperate and personnally i wouldn't cooperate with any 3rd party as quite frankly its non of their business. You should make it clear to your employer that you will only communicate with them (the employer) or the police if they wish for it to be investigated externally. They may have provided your details to this security firm in breach of data protection act as you have not consented to your employer passing n your private details to a 3rd party company, have you? probably not! also such details can only be passed on without your consent if you have committed an offence or is requested by the police or court.

 

Secondly, you say you sent emails. Well has the information in these emails actually been used by you at the new job? (no as you havent started the new job!) did it contain contact infromation where you could poach the customers from your employer while at your new job etc? if so then you have not actually committed an offence without signing a non disclosure form, where by you are bound not to use or disclose such information to 3rd parties or your employers competitors etc. but you would be in breach of data protection act for using such information. If you send the infomation in the emails purely for your current work purposes at the time they were sent, then you will not have done anything wrong. In otherwords it's the employer that would have to prove that the emails were in breach of company policy or the information in the emails was used unlawfully! so what is your companys IT policy regarding emails?

 

Thirdly, your employer has no right to refuse you access to collect your belongings from your work place. they are your property and preventing you access to your property would be an unlawful act.

 

Basically, unless you have used the information in the emails for your own personal gain or passed them on to a 3rd party, which am assuming you have done nothing of the sort. Then you have done nothing wrong, unless sending such information to your personal email address was in breach of the companies IT policy. But the question i do need to ask, is why send to your own personal email address and not to your private work email adresss which all office workers have? as you would surely still be able to access your work email from home and the fact you once had a company laptop would prove that.

Edited November 17, 2009 by teaboy2

[teaboy2]

Teaboy you are a star - scales duly tipped - thank you.

 

will keep you informed of the progress - he is making her go in tomorrow so she is going armed with the employment rights act and your advice.

 

We will see what happens.

 

How did it go andie?

[bankruptZW]

Teayboy thank you for your detailed explanation.

my Role is Internal Sales

 

I have not used this information at my new employer as i start in Jan ? I can use it with my next employer as it contains contact info and , cost of goods etc but was not bothered about doing that.

I have already submitted a grievience against my boss who suspended me as when he offered me a counter offer on the second day and rejected it- he then suspended me and spoke to me in a very demeaning and dishuman way and i am now very stressed now going to the doctors - (do you think i did the right thing submitting the complaint against him). the manager in question rang and apologised before he had had about my grievieance i sent to HR.

I presume waht they have been doing is prettey legal as they have gone into my work email inbox and searched through my incoming and outgoing emails without notifying me.

[andie_303]

How did it go andie?

 

Hi teaboy,

 

Basically my mum went into work on that Saturday and handed him a letter saying that she believed her contract to be null and void due to the employment contract not being inline with the law therefore its not a legally binding.

 

She then said that she was not willing to give the 6 weeks notice as this was an unfair term and not prescribed by law.

 

He then asked her what she meant by this and would she be willing to negotiate.

 

She then compromised (not willing to risk a bad reference of the threat of suing) that she would give 4 weeks notice however this was dependent on his showing the respect employees deserve and that the swearing, shouting and bullying had to stop and that she would just work her contracted hours.

 

If he breaches this she will walk.

 

She detailed this agreement to him in a letter which he then signed.

 

That to me is an admission of his wrong doing in the fact that he signed agreeing to the no bullying etc.

 

The sooner there are laws against bullying in the workplace the better - I heard on the news the Unions are calling for such a law to be implemented as automatic discrimination.

[teaboy2]

Hi teaboy,

 

Basically my mum went into work on that Saturday and handed him a letter saying that she believed her contract to be null and void due to the employment contract not being inline with the law therefore its not a legally binding.

 

She then said that she was not willing to give the 6 weeks notice as this was an unfair term and not prescribed by law.

 

He then asked her what she meant by this and would she be willing to negotiate.

 

She then compromised (not willing to risk a bad reference of the threat of suing) that she would give 4 weeks notice however this was dependent on his showing the respect employees deserve and that the swearing, shouting and bullying had to stop and that she would just work her contracted hours.

 

If he breaches this she will walk.

 

She detailed this agreement to him in a letter which he then signed.

 

That to me is an admission of his wrong doing in the fact that he signed agreeing to the no bullying etc.

 

The sooner there are laws against bullying in the workplace the better - I heard on the news the Unions are calling for such a law to be implemented as automatic discrimination.

 

lol i would have loved to have seen his face becuase i bet his jaw dropped like a stone lol.

 

And good on your mum for getting his signiture because this good be used as admission of guilt (as you said) if your mum decides to take action for constructive dismissal after she leaves, after all its because of this mans actions thats shes decided to leave. I feel sorry for all the other employees that will still be there working for him after your mum leaves, but at least your mum is free from worry now. and no doubt delighted by the result she got.

[teaboy2]

Teayboy thank you for your detailed explanation.

my Role is Internal Sales

 

I have not used this information at my new employer as i start in Jan ? I can use it with my next employer as it contains contact info and , cost of goods etc but was not bothered about doing that.

I have already submitted a grievience against my boss who suspended me as when he offered me a counter offer on the second day and rejected it- he then suspended me and spoke to me in a very demeaning and dishuman way and i am now very stressed now going to the doctors - (do you think i did the right thing submitting the complaint against him). the manager in question rang and apologised before he had had about my grievieance i sent to HR.

I presume waht they have been doing is prettey legal as they have gone into my work email inbox and searched through my incoming and outgoing emails without notifying me.

 

Hi bankruptZW

 

Yes they as a company actually own your work email address, unless it was one you had to set up personnally using MSN, yahoo or any over email programe. But if its owned by them, then they have every right to access it.

 

However the fact remains that you have not actually committed an offence, unless it states in the companies IT policy that you are not allowed to send such information to your private email, or something along those lines. The fact they are bringing this up after offering you a counter offer to your job offer, means they are (in my personal view as an employer myself) victimising you. As it seems to me they most have known about this for a while and just simply decided not to act or that it was simply ok for you to send such details to your email address, in order to work from home etc. So really we need to know what your company handbook and contract says in its IT policy. if their is no such policy, then since you have not used the information then their is nothing to answer to. and they would be firmly in the wrong.

 

But to be honest i reckon you have a good case and every right to put in the grievance. and it may just be that since you rejected their offer then instead of paying you for your notice and any other monies that may be or become owed to you in that period. they have decided that its cheaper for them to just sack you. But we seriously need to know exactly what is said in your comapnies IT policy if no such policy then they havent a leg to stand on since you have not used or given away the information.

 

On other thing though, is do not ever use the information to contact the customers who the information is for, as that would be breach of data protection. Unless you find it (the exact same info like name and phoen number) also in the public domain such as internet or phone book. as then you would have got the same information from a public source which would not be a breach of data protection. if you get what i mean.

[andie_303]

lol i would have loved to have seen his face becuase i bet his jaw dropped like a stone lol.

 

And good on your mum for getting his signiture because this good be used as admission of guilt (as you said) if your mum decides to take action for constructive dismissal after she leaves, after all its because of this mans actions thats shes decided to leave. I feel sorry for all the other employees that will still be there working for him after your mum leaves, but at least your mum is free from worry now. and no doubt delighted by the result she got.

 

Yes - as she is under 12 months she cannot go for constructive but it would have been great proof if she could.

 

Though I suppose it could also be great proof for some of the other employees there in the future who have been there over 12 months and tire of this idiots attitude.

 

Thanks again for all your help.

 

P.S as she never actually told him what specifically was wrong with his contract I bet his mind is still whirring

[teaboy2]

Yes - as she is under 12 months she cannot go for constructive but it would have been great proof if she could.

 

Though I suppose it could also be great proof for some of the other employees there in the future who have been there over 12 months and tire of this idiots attitude.

 

Thanks again for all your help.

 

P.S as she never actually told him what specifically was wrong with his contract I bet his mind is still whirring

 

lol i bet it is. perhaps your mum could write a letter and give a copy in an envelope to all the staff on her last day there, detailing everything. so then they would know too.

 

you can take civil action against him though, for bullying intimidation etc, but thats up to your mum and i doubt she would want the stress off doing so.

[andie_303]

Grrr this man is just irritating now - please someone tell me if I can do anything about this even though she has been there less than 12 months.....

 

Basically my mum is due to finish there on Friday 4th December - everyone in the company gets paid on the last working day of the month therefore this month would be 30th November.

 

My mum processes the payroll and last friday she was putting everyones on the banking sheet ready to fax off to the bank for them to be paid on Monday. The way it works is the employees are split between 2 different companies owned by the same people - 2 are paid through 1 (this includes my mum) and 8 are paid through another.

 

As she was processing it her boss came up to her and said don't put JXXXXXXX wages through today. This is the company that pays hers and another persons wages.

She questioned why not as this would mean she wouldn't get paid and he bascially told her to do as he says and to not question it.

She pushed the matter and he basically said he thought if she got paid on monday then she would not see out the last week of her notice (this isn't true as my mum has more morals than that) and so he was holding the wages until the week was out.

 

I am fuming - I know this is unlawful deduction of wages however he is not saying he will keep the wages he is just deliberately withholding them to ensure she works the week.

 

She has been in today and asked again to put the banking sheet through - as there is a 3/4 day delay in the bacs run but he's said no he will release the form to go on friday so that will mean payment is actually received by my mum (and the other worker) 10-11 days late.

 

God he is such an idiot he makes my blood boil!!

[BeauBrummie]

Hi andie303,

 

Very frustrating to say the least. Can your Mum ask if her soon to be ex boss will pay any charges that the bank charge for non payment of DD's or SO's that Im sure your Mum has coming out of the acount that her wages were due to be paid into??

 

It is yet another breach of contract but he will get away with this I suspect as there is only a few days to go--is all Holiday pay accounted for etc ??

 

Beau