Contract and Notice question

[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

[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.

[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.

[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?

[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.

[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.

[teaboy2]

Hi Andie

 

Tell your mum to remind her boss of the contract he signed agreeing to no acts of bullying/victimization etc. As this act of with holding wages is constructive bullying/victimization. Also he knows dam well that if after paying your mum, she then did not complete her notice, that he would be able to reclaim the money for days not worked. So basically tell him, pay me or we let the solicitors sort it!

 

id also question their accounting methods aswell, as only way they can pay 2 people through one company is if those 2 people work for that one company. the other 8 i suspect are employees under the other company name but sounds to me like the 2 companies are operating as one. If so then a report to HM Revenue and customs might be in order.