Help Please - Employment Tribunal Coming Up

[mrswal]

I started a new job back in 2010 and i was on probation with the company for 9 months and i realised i was working more hours thank i was contracted for. This with it being a highly competitive sales environment I was very reluctant and nervous to bring this issue up with my line manager. In fact, during my probationary time, two other employees had failed their probation and were dismissed which made me apprehensive to question this issue. When I had successfully completed my probation and promoted, I raised this issue with my line manager. I was told; that these were the working hours required by me, I was not allowed to start after the required starting time or finish before the required finish time; she was not open to discussion on this matter or was prepared to speak to the Senior Manager. I was worried and scared that I would be seen as a

troublemaker if I approached senior management directly. The only other option was to voice my concern with the HR team, but unfortunately there was an incident where a Senior HR Representative was visiting our office for a day and was discussing; in detail, a highly sensitive issue concerning another member of staff from another office. This was information that neither I nor my colleagues should have had any knowledge about and I felt extremely uncomfortable being told this information. I was concerned that if I approached HR with my concerns, my confidentiality might not be maintained and the treatment of this individual also made me question the professionalism of the HR Department and gave me cause to feel threatened by HR’s lack of confidentiality and professionalism. I felt isolated and unsupported about my problem and was unsure with whom this issue could be raised without reflecting badly on my career. I raised my issue via a confidential survey asking; why we were the only division ithat were working longer hours than other staff I hoped that the Chairman’s office would read and possibly investigate these surveys, a phone call did come from the Chairman’s office but nothing else happened with relation to these surveys. There was an option in the satisfaction survey to be named, yet I chose no remain anonymous as I felt the consequences would be too great. I felt the repercussions, if named in the survey i could have been that; I would not have been passed positions to fill and this would have affected my bonus and take home pay. There would be times; when I would go into work early, work through lunch and often stay later than my official working hours. When I calculated the number of hours I had worked unpaid it was quite substantial, this is when I decided that to end my employment and seek a new role with another company I approached my employer by e-mail asking for payment of the additional hours. There response was that; staffs were only required to work 40 hours per week and if I chose to do more hours, then that was up to myself and that I would not be refunded for the additional hours which I had worked. I also contacted the company again to advise them that these were my working hours as stated in my contract, that I did not have the luxury of choosing a 40 hour shift pattern hours as there was no shift pattern in the office, I was working from 8.30am to 6pm Monday to Thursday and 8.30am to 5.30pm on a Friday, so I was actually working an additional 2 hours every week which was not reflected in my wages.

 

I am now at the stage where i am taking them to a tribunal. I have completed my ET1 form and received a date for next week. I offered them a settlement which they have rejected. We have been going back and forth for weeks and the judge has asked me to outline my situation. Does this mean what i am claiming for? My initial claim was for unlawful deductions from pay, can i claim for breach of contract? Acas told me I should have done that 3 months after i started but citizens advice advised its 3 months less 1 day from the date i left my employment. Can someone clarify and give me some advice please?

 

Thanks for taking the time to read this and any help is appreciated.

[Skinnered]

You have outlned your grievance and your attempts at redress clearly enough here. I presume you will have done the same on your ET1 form.

 

Are you still in employment at that company? Your post does not make this clear.

 

If you are still employed there, are you still working hours for which you are not paid?

 

If not still employed, do you consider yourself to have been constructively or unfairly dismissed?

 

Without wishing to read the Judge's mind I would think he is asking about your present situation.

 

I would send a comprehensive summary of the grievance and the actions you took to resolve it, and the company's failure to address it. Then what your next steps, if any, were

 

Also an itemised list of the terms and conditions of your employment, your contract; eg. Stated hours of work, salary, grievance procedure, etc. pointing out where the company deviated from contract

 

If you are no longer employed you could say what your present employment status is and what benefits, if any, you are in receipt of.

[mrswal]

You have outlned your grievance and your attempts at redress clearly enough here. I presume you will have done the same on your ET1 form.

 

Are you still in employment at that company? Your post does not make this clear.

 

If you are still employed there, are you still working hours for which you are not paid?

 

If not still employed, do you consider yourself to have been constructively or unfairly dismissed?

 

Without wishing to read the Judge's mind I would think he is asking about your present situation.

 

I would send a comprehensive summary of the grievance and the actions you took to resolve it, and the company's failure to address it. Then what your next steps, if any, were

 

Also an itemised list of the terms and conditions of your employment, your contract; eg. Stated hours of work, salary, grievance procedure, etc. pointing out where the company deviated from contract

 

If you are no longer employed you could say what your present employment status is and what benefits, if any, you are in receipt of.

 

 

Hi,

 

Thank you so much for taking the time to read this. No I left and yes I have submitted my Et1 form. So can I say it's constructive dismissal? What about breach of contract? There is a lot more to it as I was subjected to bullying before I left. I have an email from another colleague to my line manager discussing me, the email is basically let's meet in the other room to discuss her. It's about an issue I raised about how work was allocated. Surely this would also add to my claim and demonstrate the type of unprofessional and unethical environment I was working in? When i left I verbally told the manager that it was due to working hours but in my resignation I just stated the termination of my employment although I did thank them for support. I only done this as I knew I would need a reference. They didnt respond to my new employers request and it took over 2 months to receive my reference so I waited until my reference was returned before starting this claim. So I was right to do so and when challenged by their legal team I explained I left in a professional manner and the manager will be able to confirm that I verbally advised it was due to working hours. Plus I emailed asking for payment for the additional hours.

 

What's your thoughts on this? Ps thanks again for your help.

[Emmzzi]

did they ask you to do the extra hours?

 

did you agree payment for them upfront?

 

does nonpayment take you below minimum wage?

 

do you have evidence of all the above?

 

hiding to nothing without at least some of this. and no evidence = no case.

 

if I read this right you are looking at about 2 hours a week?

[assisted blonde]

Were you salaried or hourly paid ?

[Skinnered]

I can't see how the tribunal is going to support your claims based on what you have said so far. If you cut out all the emotional stuff there are really few actual facts or solid evidence to go on.

 

You were unhappy from the start but failed to put your grievances on the record being afeared of your probationary chances and then of your promotion prospects. One could argue that the extra hours you worked were purely in order to further your career.

 

After you brought the fact that you were working more hours to the manager's attention you were told that it was your own decision. Did you formally repudiate that? Did you continue to work the extra hours after that?

 

You failed to follow up your claim for the overtime pay because you were afeared of the people to whom you should be addressing your grievances.

 

You left on amicable terms without giving any hint of what you now claim was your main reason, and you continued in silence until you got your reference. Was it a favourable one?

 

You should have already given your reasons for bringing this case before a tribunal on form ET1. A copy of this form willl have been sent to your ex-employers. When they read it will they have any idea what you are on about since you were as nice as pie while you were there and for some time after?

 

I am not arguing the rights and wrongs of your perceived grievance but to go from your interpretation of it to persuading an industrial tribunal without even an attempt at following a grievance procedure is going to take skills way beyond me.

[mrswal]

did they ask you to do the extra hours?

 

did you agree payment for them upfront?

 

does nonpayment take you below minimum wage?

 

do you have evidence of all the above?

 

hiding to nothing without at least some of this. and no evidence = no case.

 

if I read this right you are looking at about 2 hours a week?

 

No they never asked me to do these hours, when i started i assumed i was working the hours i was contracted to do. It was someone else who pointed it out to me. If i had raised a formal grievance i would have been isolated and treated differently. I could not approach hr due to them always breaching confidentiality and i would have been treated differently and i would not have been allocated work fairly. This was a sales environment i was working in.

 

No non payment does not take me below my minimum wage.

 

Im not sure i understand what you mean about hiding nothing. I was sometimes asked to work more hours and i did, i was also asked if i would do a late night and i refused as i was working more hours than i was paid for and always told my manager this was under protest. It was not my choice to work 2 hours extra per week and this was the minimum as i often went in early and worked late and im not claiming this back. I felt aggrieved that i was coerced into working these hours, it was not my choice.

 

Thank

[mrswal]

Hi,

 

Thanks for your reply, no my manager agreed that she did not want to work these hours either. It was hr who advised that it was ''my choice"' which it wasnt. If i had raised it in the first 9 months chances are i would have been sacked. Anyone who had an opinion did not last in this company and anyone who challenged the manager was ran out the door. I was asked if it would make a difference if i started later or left earlier when the manager moved to a new house. You see after she moved she no longer worked the same hours as everyone else. They wanted us to do a late night and i told them i was already unhappy with working my current working hours as i was not being paid for them and i was working under protest.

 

Yes i was scared of the repercussions and had no confidence what so ever in the hr function. There was situations with previous employees and the manager openly told me hr told her everything and that any discussion was not confidential at all. How was i to over come that? I thought i would speak to acas for advice and they told me to do my et1 form explaining i was waiting on my reference. All they one was confirm dates of employment, standard reference.

 

I told the manager the main reason i was leaving was i had secured better working hours, i did leave in a professional manner. I knew the manager would hold out on my reference and it was submitted in october and not returned until January. I have evidence of the sent and received emails.

 

Yes they would have had an idea, the manager often joked about people taking the company to court for unpaid wages on the amount of hours that were worked unpaid and that was not just counting the 2 hours per week.

 

So would i be right in thinking my experience with the HR Director discussing a sensitive case openly would not make a tribunal pay attention? I felt i had good reason for not contacting hr to investigate as it would have got back to the line manager and i would not have been treated with confidence.

 

Thanks again for your response.

[Emmzzi]

"hiding to nothing" is just an expression which means "no chance".

 

from what you say there was no coercion; I do not think you have enough evidence for a case. On the other hand you could whack in an ET1 and see what happens.

[mrswal]

Ok thanks, I have done an et1 and got a date for a hearing and it has been accepted.

[Skinnered]

Emmzzi asked you;

 

did they ask you to do the extra hours?

 

Your answer was;

 

No they never asked me to do these hours, when i started i assumed i was working

the hours i was contracted to do

.

 

You then explain why you chose not to pursue the issue. You decided for yourself what the outcome would be.

 

 

Then you say;

 

when i started i assumed i was working the hours i was contracted to do

.

 

Since you now believe that you worked more hours than you were contracted to work where did you get the figure to confirm this belief? Was it in your contract all along?

 

Farther on in your last posting you say;

 

I was sometimes asked to work more hours and i did, i was also asked if

i would do a late night and i refused as i was working more hours than i was

paid for and always told my manager this was under protest.

 

Here you are contradicting your earlier answer. You claim that you worked the overtime under protest but you chose to continue to do so for fear of imagined consequences.

 

The tribunal will doubtless require you to provide the evidence of the protests you made. Do you have anything in writing or do you have witnesses?

[mrswal]

Yes i have 2 witnesses who can confirm all of the above, one of them did query the hours with hr and they directed her back to her manager and she said that was the hours and that was that. Yes it was in the contract all along, i foolishly trusted i was working the correct hours. The consequences would not have been imagined, i watched 3 people be isolated, bullied and harassed for challenging the manager. Neither of them lasted 1 year so had no claim in terms of an employment tribunal.

[Skinnered]

Now you're talking.

 

Get two written witness statements confirming what you say re working hours. Better still, have them give evidence at your hearing.

 

Write a detailed account of what actually happened to the people in the examples you quote and forget the emphasis on what you thought or feared except to say that those examples confirmed you in your belief of the futility of exerting your contractual rights. Better still, have then give evidence at your hearing of the sort of conditions and atmosphere you had to endure.

 

This would be the sort of solid evidence that you could then send on to the Judge in response to his request.

[mrswal]

Now you're talking.

 

Get two written witness statements confirming what you say re working hours. Better still, have them give evidence at your hearing.

 

Write a detailed account of what actually happened to the people in the examples you quote and forget the emphasis on what you thought or feared except to say that those examples confirmed you in your belief of the futility of exerting your contractual rights. Better still, have then give evidence at your hearing of the sort of conditions and atmosphere you had to endure.

 

This would be the sort of solid evidence that you could then send on to the Judge in response to his request.

 

Hi,

 

Thanks for this, both are attending with me and are happy to give evidence to that effect. I appreciate your help once again!

[Pusillanimous]

What does your employment contract say? It will say what your hours are, but it will also probably say that you are expected to do overtime when asked with no extra pay. This is what you need to look at.

[assisted blonde]

salaried employees often work hrs as necessery often more than contracted hours, it is expected that overtime isnt paid, hourly paid employees get overtime.

[foodandbeverage]

I have no idea what is being claimed or what the issue is here but I think you feel aggrieved by the extra hours you have put in which you were not paid for. How many hours were you contracted to do and how many did you end up doing each week?

 

I think to settle for these extra hours you worked. I am starting to think this is either your first job or that you have come back into work after a long absence.