Help needed.

[TheLion]

My father-in-law works as a doorman at a pub. He has been continously for three years. Several months ago the business changed hands and as far as we are aware his contract has to remain the same under employment law. The owner has decided to cut his hours, therefore changing his conttract without his agreement. A letter was given to her stating that he does not accept this and that he is now working under protest until the problem is resolved. He also raised a grievance under the Employment Act 2002, as advised by CAB.

 

His employer has replied:

 

They state that the Employment Act 2002 legislation is no longer in place and since April 2009 the grievance procedurehas been replaced by the ACAS guidelines.

 

They state that the informal discussion, to which no other person was present, counts as him accepting and agreeing to the changes, which he did not.

 

They threaten redunancy if he will not co-operate.

 

They state that even though he has a written contract the previous owener has not informed them of his this, and has not provided the,m with a written contact.

 

They request a copy of his contract even though he has been working the same hours, getting paid the same for the last three years.

 

Any advice would be of great help.

[honeybee13]

Hello there and welcome to the forum. I hope we can help your Dad.

 

Does he have a written contract from the last employer please?

 

HB

[Sidewinder]

Hi and Welcome

 

My father-in-law works as a doorman at a pub. He has been continously for three years. Several months ago the business changed hands and as far as we are aware his contract has to remain the same under employment law. The owner has decided to cut his hours, therefore changing his conttract without his agreement. A letter was given to her stating that he does not accept this and that he is now working under protest until the problem is resolved. He also raised a grievance under the Employment Act 2002, as advised by CAB.

 

His employer has replied:

 

They state that the Employment Act 2002 legislation is no longer in place and since April 2009 the grievance procedurehas been replaced by the ACAS guidelines.

 

The Employment Act 2002 (Dispute Resolution) Regulations 2004 Code of Practice was repealed and relaced by new provisions under the Employment Act 2008. The new ACAS CODE came into effect on 6th April 2009, enabled by the Trade Union & Labour Relations (Consolidation) Act 1992. The ACAS Code was there all the time, but changed in the 2008 Act.

 

A failure to abide by the Code in itself does not make any procedure or dismissal unfair, but in a successful Tribunal action, the failure would be taken into account in making any award. The Grievance Procedure has not changed, merely the possible consequence of the employer not following it. They would seem to be nitpicking as they should still record the Grievance and hold a meeting to discuss and try to resolve it. Your F-I-L should be allowed to be accompanied and be given the right of appeal against the outcome.

 

They state that the informal discussion, to which no other person was present, counts as him accepting and agreeing to the changes, which he did not.

 

Nonsense. By that reckoning an employer could braech an employee's contract at will simply by holding an informal discussion. Any change of contract involves consultation and agreement. Your F-I-L has clearly not agreed for he has recorded a grievance against accepting the terms on offer.

 

They threaten redunancy if he will not co-operate.

 

They are on shaky ground. It is not a person who is made redundant, but the role that they perform - that does not seem to be the case here. To impose the contract, the employer must firstly terminate the existing one, then offer to re-employ under the new terms (effectively dismissing your F-I-L then offering him a new job). He is entitled then to reject the offer and may sue for the breach of contract, unfair (or constructive) dismissal etc.

 

They state that even though he has a written contract the previous owener has not informed them of his this, and has not provided the,m with a written contact.

 

That is for them to take up with the old employer or deal with themselves. They obviously didn't carry out the required due diligence in advance of buying the business.

 

They request a copy of his contract even though he has been working the same hours, getting paid the same for the last three years.

 

As stated above, they should have been provided with this by the former employer, but it will help if your F-I-L can provide a copy. If not, then copies of payslips will more than suffice as they demonstrate a pattern, which even though not confirmed in writing, suggests an implied term in relation to the number of hours worked.

 

Any advice would be of great help.

 

The other thing to look at is TUPE itself. The law makes it clear that employees are transferred under their existing T&Cs in order to provide protection from such changes. Any change to the contract must be negotiated and cannot be forced as a consequence of the transfer. The employer would have to demonstrate a clear ETO (Economic, Technical or Organisational) requirement to change the contracts of, or make staff redundant. As stated previously, a redundancy would have to be a genuine loss of that position (for ETO reasons - and all those in a similar position would have to be put into a selection pool), and in the case of reduction in hours worked, again there would have to be a genuine ETO reason for doing so.

 

This is a very complex area, and ultimately the employer could simply breach the contract and take the consequences (sadly any claim for damages for the breach would not be enough to retire on), but your F-I-L is right not to simply take it lying down. It is a matter though which may well require proper legal advice from a suitably qualified employment lawyer before taking any drastic steps.

[TheLion]

Hey, thanks for the great advice. I have written a letter for him based on what 'Sidewinder' has posted. The 'Old Man' doesn't mind if they make him redundant as long as they do it right. I think he has had enough of being messed around by them.

 

Will keep you all updated. Thanks once again

 

I asked him about the contract and he does have a written one form the previous employer.

[BankFodder]

You should understand that for only 3 years employment, a redundancy payment will be scarcely anything.

[Sidewinder]

You should understand that for only 3 years employment, a redundancy payment will be scarcely anything.

 

Absolutely right - I would certainly not recommend redundancy over a valid ET claim, unless he just wants rid and has something else to walk straight into.

[Elmo South]

You say your F-I-L works as a "doorman" at a pub -A couple of questions based on experience:

Does he have an SIA licence?

Is he actually an employee of the pub? The reason I ask is that many doorstaff claim to be self-employed in order to avoid PAYE tax & national insurance being deducted from their pay. This also saves the "engager" (the pub) having to pay Employers National Insurance & makes it cheaper to engage them in this way. The problem is, if you claim to be self employed and the enegaer is treating you as such, you don't get any protection from employemt legislation - as obviously you are not employed!!

Hopefully your F_I_L will not be in this position & will have evidence that he is an employee.

What is the position with other door staff? It would be unusual to have only one doorman as most licenced premises taht have them have the numebr specified in their licence, or have it specified that the must have door staff & there has to be more than one in case one needs to go to the toilet/ is taken ill/ doesn't turn up/ is dealing with an incident etc

[TheLion]

He is employed by the pub and they deduct tax etc from his wages. There are no other door staff, and yes he does have a SIA licence. The employer usually gets someone else to cover when he is away, agency I think. How would he be able to check the requirements of the premises licence? The employer doesn't seem that clued up on the situation at all. They did little research into the pub and what they were taking on. Basically it's going down hill.

[Elmo South]

If he is an employee, then that's fine - I just thought it worth checking - I agree with Sidewinder - its a very complex issue and consulting an employment lawyer would be the best thing to do.

 

As regards the terms of the pub's licence, this is information in the public domain. If you ring your local council and ask to speak to the licencing department/officer they should be able to give you all the information. They may also have it on their webiste - a lot of councils do. From this you could check whether its a condition of their licence to have door staff.

[TheLion]

Thanks for the advice Elmo South. I will check up for him.

[TheLion]

Update:

 

FIL gave the letter we drafted to his employer. Basically it stated that he would accept redundancy and the amount of notice, redundancy pay, unspent holiday pay he wanted. He got a letter from the employer and it contained his holiday pay and a P45, they have sacked him.

 

He spoke to his employer on the phone about it, he was informed that they are not making him redundant, the brewery is. Strange, the pub is owned by the brewery but managed by his employer, the same person who pays his wage and everyone elses in the pub.

 

He has got a meeting with a solicitor soon to discuss it, and he knows he can't get legal aid. Is it true that because he has been made redundant, the job is redundant, so they can't employ another doorstaff for six months? Also, what sort of compensation could he be looking at?

[honeybee13]

I'm sorry to hear that. They sound pretty dodgy to me.

 

Yes, you're right about the job being made redundant, so they would be on a very sticky wicket if they put someone else in.

 

It sounds as it your FIL could be building up a good case against them.

 

My best, HB

[Sidewinder]

He has got a meeting with a solicitor soon to discuss it, and he knows he can't get legal aid. Is it true that because he has been made redundant, the job is redundant, so they can't employ another doorstaff for six months?

 

The six months bit is a myth. They could employ somebody else next week, but this would make your FIL's dismissal almost certainly unfair if it was a like for like job that was on offer. It isn't the person that is made redundant, it is the post, so unless there is a dramatic upturn in business then that position doesn't need to be filled - or should at least be offered to the previous incumbent.

 

In this particular case, the employer indicated that there was a need to cut the hours involved. That is a potentially fair reason for redundancy, being that the need for that type of work has ceased or diminished, however the redundancy process would seem to be flawed due to the lack of consultation. There may also have been a failure to consult under TUPE prior to the transfer, and the fact that the 'redundancy' comes so soon after the change of ownership also leaves a suspicion of the 'redundancy' being solely as a result of the transfer.

 

As regards compensation, if the redundancy is deemed substantially fair, then your FIL should be paid outstanding holiday, given his correct notice entitlement (a minimum of one week for each completed year's service), or pay in lieu of notice, statutory redundancy pay of a week's wages for each completed year (a week's pay is capped at £380 if the amount earned is above this), or a week and a half's pay (capped at £570 a week) for each year completed above the age of 41. If the dismissal is deemed to be unfair, then that opens up additional awards which vary hugely from case to case. For all sorts of reasons I cannot stress enough that proper legal advice should be taken before anything is agreed.

 

I can't understand how they have already issued a P45 if he has been made redundant

[dragonkeeper]

Update:

 

holiday pay and a P45, they have sacked him.

 

 

unusual for you sidewinder!!

you missed a bit of the post

 

 

 

 

dk

[Sidewinder]

unusual for you sidewinder!!

you missed a bit of the post

 

 

 

 

dk

 

Thanks DK

 

Looks like I may have done, but not sure.....

 

Should perhaps have said

 

He got a letter from the employer and it contained his holiday pay and a P45, they have sacked him

 

He spoke to his employer on the phone about it, he was informed that they are not making him redundant, the brewery is

 

Is it true that because he has been made redundant, the job is redundant?

 

So has your FIL been sacked, or made redundant? It isn't clear. If redundant, then when are they planning to pay him his redundancy and notice? I can't understand how they have already issued a P45 if he has been made redundant (as he is surely still due more pay?)

 

Am I still missing something?

[dragonkeeper]

The part I thought you missed was that they had sacked him

reading your last post you did not. My last post is then mute

 

Re-read post I quoted from,

 

The pub has sacked him (on what grounds)

 

The brewery making him redundant but

 

surely he works for the new licensee, as he bought the pub.

 

I think we are both missing something.

 

dk

[Sidewinder]

The part I thought you missed was that they had sacked him

reading your last post you did not. My last post is then mute

 

Re-read post I quoted from,

 

The pub has sacked him (on what grounds)

 

The brewery making him redundant but

 

surely he works for the new licensee, as he bought the pub.

 

I think we are both missing something.

 

dk

 

True. I suppose that depends on the nature of the business. I would agree that on the face of it the doorman is an employee of the Licensee. Even if the 'owner' of the pub is tied to the brewery, that doesn't make the OP's Father In Law an employee of the brewery - the relationship would be between the Licensee and the employee unless it was a chain of establishments under one common brewery ownership, in which case the 'owner' stated here would just be a 'manager'.

 

I think we need clarification on exactly who the doorman works for here

[TheLion]

Thanks for the great advice so far.

 

The pub is owned by a local brewery and the landlady has leased it from them. When she took over the lease she tried to cut his hours, basically she took the business on without doing any research into it. She told him that they did not need him on Friday nights, he protested against this and put in a grievance. She said that he couldn't as when the business changed hands the previous landlord had given all the staff their P45's. What he actually gave them was their P60's.

 

When he gave her the letter she dropped him completely that weekend and got in agancy cover. She sent him a letter after about 40+ days in response to his letter, no meeting at all, that's when she threatened his job and others if he did not agree to the cut hours. He replied with another grievance and re-requested the meeting that he had not been given. That's when she sacked him and sent him his P45, a letter about redundancy and his hoilday pay. He phoned her bout the letter and she said that the brewery were making him redundant. She pays his wages, not the brewery.

 

Personally we don't think she has a clue about running a business etc.

[dragonkeeper]

I asked him about the contract and he does have a written one form the previous employer.

 

From the above quote it seems to be the Owner/Licensee/Landlady who holds his contract of employment, as did the previous employer and not the brewery.

Does appear to have grounds wrongful dismissal/redundancy.

 

 

dk

[TheLion]

Update:

 

Spoke to the Brewery today. They confirmed that he is not employed by them, as we thought. The Brewery area manager has been informed by the landlady that she does not have the right SIA (non-front line) licence to employ Doorstaff on the payrole. Strange, she has employed him for over three months, and in her letters she has never mentiond this, in fact her last letter clearly states that if he agrees to her terms that he can continue to work there, the reason being, that they are not very busy on a Friday night, no mention about a licence.

 

Phoned the local council. They state that she is required to have two Doorstaff present from 2030 untill the premises close, on any night that it is open past 0030. She has never had two Doorstaff there ever, not even now. FIL said that the agency staff are cheaper than he was being paid, don't think that will work out in the end when she is informed that she requires two of them Oh, and obviously the position is still available.

[Sidewinder]

Update:

 

Spoke to the Brewery today. They confirmed that he is not employed by them, as we thought. The Brewery area manager has been informed by the landlady that she does not have the right SIA (non-front line) licence to employ Doorstaff on the payrole. Strange, she has employed him for over three months, and in her letters she has never mentiond this, in fact her last letter clearly states that if he agrees to her terms that he can continue to work there, the reason being, that they are not very busy on a Friday night, no mention about a licence.

 

Phoned the local council. They state that she is required to have two Doorstaff present from 2030 untill the premises close, on any night that it is open past 0030. She has never had two Doorstaff there ever, not even now. FIL said that the agency staff are cheaper than he was being paid, don't think that will work out in the end when she is informed that she requires two of them Oh, and obviously the position is still available.

 

Oh Dear Oh Dear!

 

Seems this lady may well be in for a serious shock. The condition of the licence being that doorstaff are on duty and therefore potentially unfair dismissal, failure to consult over TUPE. This could all get very expensive

for her. It baffles me constantly that some people can claim to run a business without the first idea of what is involved!

 

Fortunately your FIL seems to hold all the major cards here and should keep up the pressure.

[TheLion]

Update:

 

FIL visited the solicitors for a free advice session. He was informed that he has a good case for either 'unfair dismissal' or 'constructive dismissal', the solicitor was not sure which but said that for her to look it up he would have to start paying. She advised him to contact the CAB ASAP and file an Employment Tribunal claim. He has an appointment for two weeks time.

 

In the meantime, his former employer wants to have a meeting with him to try and resolve the situation, bear in mind that she had two chances to do this when he worked there. Personnaly I don't think that it would be wise to meet her, she must be worried about the possibility of a claim or something. Does anyone know what sort of compensation he would be looking at at a tribunal and how they work it out? Or would it be better to just seek what he is owed; wages, notice and redundancy outside of court?

[Elmo South]

On the top of your FIL's P45 there will be a reference number for his employer's PAYE scheme. If you need to check who employs him, get him to go to his local tax office & ask them to check their records.

 

Interesting that you also mention about using "agency" doorstaff. I wouldn't mind betting that the reason they may be cheaper is because they are treated as self-employed, This means the agency that engages them will not be paying Employers National insurance it also means the doorstaff aren't entitled to holiday pay, sick pay, or any other employment rights at all - making it much easier & cheaper for the agency. Of course the big problems occur if one of the doorstaff is injured or injures somneone - then claims for liability start flying.

I think your FIL is well out of this situation.

As for meeting with the employer, my persoanl opinion would be for FIL to go and at least hear what she has to say. I would suggest that he does not go alone, & takes someone who can give him moral support & can also write notes of what is actually said.

As for amounts of money -i would see what the employer has to say - there is no reason he can't listen then ask for a day or so to consider, then arrange a second meeting to agree or negotiate.

[TheLion]

Update:

 

FIL's ex-employer sent him another letter, basically a re-working of the letter reffered to in post 1. There's no reference to the last letter - see post 11 - he gave her in person, with a witness present. Even though she has sacked him she sill wants to resolve the situation amicably; aslong as he agrees to drop one day, forget about being treated like a sack of s**t and receive no other payment whatsoever. It is a stupid letter, he doesn't even work for her and a meeting with her seems pointless, she is not prepared to budge in the slightest and wants him to give in to her demands. We think that its best just to goto the CAB next week and get the ball rolling with the Employment Tribunal.

[TheLion]

Update:

 

Well, FIL and I went to the CAB meeting and were advised to attend the meeting with his ex-employer as it would add more weight to his case. The CAB couldn't understand why his ex-boss wanted to go to a tribunal either.

 

The meeting went quite well, we presented the facts to her and she had no comeback at all. There was a representative from the brewery present also. I don't think they liked it when I produced detailed logs of dates, times, names and responses to phone conversations etc. This really helped.

 

The end result is that my FIL has been promised a cheque from the brewery - guess they don't trust his ex-boss to pay up - for what he was owed in notice, redundancy and reduced hours with a little bit of compensation on top. Result!!!

 

Thanks everyone for the help and great advice that you have provided.

 

Regards

 

TheLion