Can a employer withhold wages due to covid 19

[Teddybear154]

I posted another question a week ago regarding holiday that my husbands boss won't let my husband take. This follows on from that. The member of staff they got rid of was rude and kept stealing alcohol. It turns out that they never sacked him. They were apparently to scared to. They made him redundant instead. ( they told him they did not have any hours for him any more).

 

My husband bumped in to this guy yesterday and he said if he finds out that they have employed any one else he is going to sue the company for unfair dismissal. Can he sue for unfair dismissal if they employ some one else. He worked at the company for under a year.

 

Also is it true that there is a time limit before employer can re employ someone else for same position. My husbands employer thinks it 3 months is this correct. Next month another member of staff has the whole month off. Where my husband works is now short staffed they have told my husband that for the whole of march he has got to work 12 hours a day from 10 am to 10 pm. 7 days a week With no days off as they have no one else to cover. Can they do this.

 

Could they employ a temporary agency member of staff to fill the member of staff they sacked position or would agency and temporary staff fall in to same restrictions and time limits. Sorry if this is confusing I hope some one takes the time to read this and can give me some advice

 

Thanks in advance

[ericsbrother]

In brief, no, as he hasnt been employed a year he has no rights of this kind. He could argue that it wasnt redundancy but that can still lead to dismissal which wont do him any favours when it comes to getting another job. All the company has to say is the job has changed.

[Teddybear154]

My husband works for a large pub and hotel as a chef. He has been working there for over 5 years. He is getting sick of the way he is being treated.

 

The kitchen is under staffed with only 2 chefs. The head chef and my husband. The head chef refuses to works evenings so has every evening off and has 2 days off every week. My husband is forced to work every evening as well as during the day. Serving 200 + customers on his own. My husband works 6 -7 days a week 11- 12 hours a day and if he is lucky he might get 1 hour break some times he gets no break. My husband does all the food ordering and every thing. The head chef get alot more pay than my husband and works alot less hours and does nothing.

 

My husband has to work alone on Fridays during the day and evening as head chef is off. This is one of the busiest days of the week. My husband is getting so stressed out have to do the work of 3 chefs. The boss wont employ enough er chef as they are too tight. They are greedy and would rather keep the money for them selfs. Occasionally they put one of the waiters or the pot wash guy in kitchen to help my husband but they are not train chefs and have never cooked in a restaurant before. So it makes thing worse not better. They think this is acceptable.

 

On top of this my husband is always refussed his holiday when he asks to take it and when he does get to take some holiday. One or 2 days in they normally harass him by phone demanding he cancel his holiday and come back to work.

 

My husband is sick of it, my husband is looking for another job but has not found any thing yet.

 

My husband has tried to complain but they just laugh to his face.

 

My husband is feeling like it is getting to a point when he has no choice but to quit and walk away.

 

If my husband walked out would he have a case for constructive dismissal.

 

Are the any other options my husband could try before walking out.

 

If my husband does have a case for unfair dismissal and walks out how would we go about suing them or taking them to court. And would we be entitled to any legal aid or would a no win no fee firm take on the case. As we don't have a lot of money. But my family will help us get by for a few months if needed.

 

One other thing my husband is not well due to the amount of stress he is under, he keeps having dizzy attacks and collapses. His employer knows this but does not care. My husband has been to doctors and was on medication for a while.

 

Any advice much appreciated

 

Thanks in advance

Edited May 31, 2013 by Teddybear154

[postggj]

Has he put in an official grievance

 

Has he a copy of his contract of employment

 

It is now almost impossible to get legal aid for employment tribunals unless you are in a trade union

[Teddybear154]

My husband has tried to complain verbally. Should he put a complaint in writing to them. There is nothing regarding there grievance procedure in his contract. Tp what is normally the official grievance procedure.

 

I should probably mention it is a small privately opened pub and hotel, it is not part of chain. So there is no hr person or any thing like that.

[Crocdoc]

Your husband has the right to reduce his hours to to 48 under the Working Time Regulations, however he must inform his employer in advance (See notes below) In addition 28 days annual holiday is a statutory right.

 

20 The requirement to limit work to a maximum of an average 48-hour week can be waived if an employee agrees to work more than this. However, no worker who is covered by the regulations can be made to work more than 48 hours per week if s/he chooses not to.

21 If a worker agrees to work more than the 48-hour average weekly limit, the employer must first obtain her/his agreement in writing. The worker's agreement must be freely given and if s/he has been put under direct or indirect pressure to agree, the agreement may be invalid.

22 The worker has the right to end the agreement to work more hours by giving at least seven days' written notice to the employer. However, the agreement may require the employee to give more notice (up to a maximum of three months) before s/he can start working an average 48-hour week again.

23 The employer must keep up-to-date records showing which workers have agreed to work more than 48 hours a week. There is no requirement for employers to keep records of the actual hours worked by these workers, nor is there any requirement for the employer to make such records available to the Health and Safety Executive or to an environmental health officer.

24 If a worker has been working more than 48 hours a week and then chooses to reduce her/his hours to 48, then it is likely that her/his pay will be reduced.

.

 

How long has your husband worked for the company ?

Edited May 31, 2013 by Crocdoc

[postggj]

He needs to write a letter of complaint to the boss

 

At the top he needs to put official grievance as to your grievance procedure

 

All employers have to abide by this as it is part of the ACAS code of practice

 

What they have done as to the holiday allowance is unlawful, he is entitled to 28 days paid holiday a year by law, it is a prescribed term

 

things like the working directive may come into play, does he live at the pub/hotel

 

The working time regulation have a caveat to people who live in house/service industry etc

[becky2585]

It sounds like a potential breach of the Working Time Regulations in respect of both the maximum 48 hour week and also the weekly minimum rest periods.

 

A formal grievance addressed to a senior manager is the way to go - if they don't address his complaints then yes, constructive dismissal does sound like a potential claim here.

[Teddybear154]

My husband does not live in. As said he is my husband so we are married and have 4 children. 2 have medical conditions and need round the clock care. We rent a house locally and live 5 minutes walk away from where he works.

Due to amount of hours they are making my husband work we never see him.he goes to work before the children get up and by the time he come home the children are in bed. It is putting a great strain on the family and are relationship.

 

I have looked at my husbands contract and it states you will work 48 hour per week or more if needed. But my husband was never shown contract when took job, he was given contract several months after.

[postggj]

He needs to get that grievance in first

 

If they fail to rectify the dispute reference the working time directive, holidays etc, you will then have a case for constructive dismissal

 

But you must use the grievance procedure first to try and sort out any dispute

[Teddybear154]

Thanks squaddie. I will tell my husband when he gets home tonight and we will write up a letter of complaint tonight.

[becky2585]

He also needs to give them a weeks notice to opt back into the 48 hour week - they can't then lawfully make him work more hours.

[postggj]

I was under the impression that the employer could not opt you out of the Working Time Directive, the employee had to do that, unless it was an exempt occupation such as the military or emergency service

 

I suppose the employer might go along the line of custom and practice though to try and get out of it, even though it would still be an unlawful act

[becky2585]

I was under the impression that the employer could not opt you out of the Working Time Directive, the employee had to do that, unless it was an exempt occupation such as the military or emergency service

 

I suppose the employer might go along the line of custom and practice though to try and get out of it, even though it would still be an unlawful act

 

If its written into the contract then it's lawful. The employee always has the option to opt back in with written notice.

[assisted blonde]

Pub chefs are not easy to get am sure he will get another job soon

[steampowered]

Unfortunately I do not think there is enough here for constructive dismissal. Constructive dismissal cases are difficult because you have to prove that the employer is in breach of contract, and that the breach of contract is serious enough that the employee can treat himself as dismissed.

 

Remember that opting back into the WTD would result in a loss of income since your husband could effectively only work 4 days not 6-7.

 

It sounds like the pub owners are trying to take what they see as the easiest and cheapest option. It sounds like they might think your husband is a push-over and do not take his complaints seriously - there must be a reason why the head-chef is given a much easier time. It sounds like your husband is indispensable to their business, so if he tells them the boss he is thinking of leaving because of working conditions or starts calling in sick blaming dizzy episodes due to being overworked, hopefully that might give him a bit of leverage to negotiate better working conditions. Hopefully saying he has started looking for another job will encourage them to listen to him.

[Teddybear154]

hi steampowered,

 

Thanks for your reply. I am surprised by what you are saying as to me there seems to me to be more than enough for constructive dismissal. It's not just the amount of hours my husband is working that is bothering him. The thing that is bothering my husband the most is that he is being made to do 3 people's work on his own. It is not a small pub that he works for it is a hotel, and pub, there is a restaurant in the hotel and the pub and the one kitchen caters for both. Each evening my husband has to cook for 200+ customers on his own. And not just main courses, starters and desserts as well. So has to run between sections doing every thing. Then he has to clean kitchen by him self and do all food ordering. On Fridays and Saturdays the busiest days of week my husband is on us own during day as well having to do all prep on his own.

 

Surely being made to do 3 people's work in its self is a breach of contract in the form of bullying ( lack of support) to do his job. And there for would be good grounds for constructive dismissal.

 

Correct me if I'm wrong.

 

The reason the head chef gets a easy time, is that he is a long time old friend of the owner. The manager thinks the head chef is useless and as told the owner but she won't listen as the head chef is a friend. The owner is being conned. The head chef is being paid a very high head chef wage and is defiantly not doing a head chefs job. The head chef is lazy and nothing more than a glorified breakfast chef. He never cleans up after him self. Does very little work when he is at work and always leaves work early but does not clock out so still gets paid. The manager knows this but can do nothing.

 

Also the head chef is English, my husband is french ( has lived in uk for 12 years)There are a few other foreign members of staff and they are all being treated bad as well.

[steampowered]

I see why you think this could be Constructive Dismissal. Your problem is that the threshold for constructive dismissal is really quite high. The reality is that most CD cases which go to Tribunal lose, because they are difficult cases.

 

It is not obvious to me that being asked to do a lot of work is breach of contract - no doubt the work is extremely difficult, but from the manager's perspective your husband does seem to be capable of doing the work. However, failing to respond to known medical issues could be said to be a breach of the employer's duty of care. If you want to start thinking about the CD route, you need to start putting a paper trail in place so that you have evidence for the Tribunal. This means a written grievance, including written evidence of the medical issues, which will be useful to show that the owner knew about the problem and did nothing to resolve it.

 

I do not think you are far enough down the road for this to be a winner at Tribunal. The other side will legitimately ask questions like: if things were so bad, what steps did you take to resolve the situation? Why didn't you file a written grievance? If holidays and stress are such an issue, why did you agree to cut your holidays short? Why did you not take breaks? No doubt he has answers to these but query how they would stand up to cross-examination by the other side's lawyer on the witness stand.

 

It sounds to me like your husband has allowed himself to be pushed around. It sounds like they cannot run the kitchen without him and thus he is invaluable to the employer. I would take the following steps: (1) put in a written grievance with evidence of the medical issues, (2) insist on taking the 20minute break he is legally entitled to every shift, no exceptions (3) he is legally entitled to 28 days' holiday a year, so get his holiday booked in and simply refuse to come back into work when he is on holiday. Hopefully this will spur them into hiring another chef.

[Teddybear154]

My youngest son has not been well since March,

he is getting high temperatures every week to week Half,

rashes all over his body and chronic pain through out his body.

 

He has seen May doctors and has had many tests but they could not find out what's wrong.

 

 

He has now been referred to Alder Hay Children's hospital and has got to be admitted for a few days the week after next for tests and scans including a bone scan, heart scan a various CT scans.

Because he is only 4 he has to be put to sleep for each scan.

I have 3 other children 2 with autism and other disabilities.

 

 

I don't work as gave up woke to care for them.

I can not take my other 3 children with me when my youngest goes in to hospital.

We have no family or friends who live near by who can help

so my husband wants time off to look after our other 3 children whilst I stay at the hospital with my youngest son.

 

My Husband was forced to take last week and this week off on holiday he was not given a choice.

Another employee who he works with has next week and the week after off.

 

He explained situation to this other employee and asked if he would switch time off and have this week and next week so my husband could have week after off but they refused. And said it was their birthday and were going to party and get drunk for 2 weeks and that was more important.

 

My husband then went and spoke to employer and explained situation

asked if he could work this week to keep the holiday and have week after next off.

 

 

employer said if other employee won't swap he can't have time off as there is no one to cover.

refused the time off and forced him to have this week off that he does not want.

 

He still has plenty more holiday to take but we were trying to keep as much as possible for taking my son to hospital when he needs etc. They won't even let him take unpaid leave and have threatened him with the sack if he trys to take the time off anyway.

 

If my husband can't have time off

I can't take my Son to Alder Hay for tests,

Alder Hay will probably not be happy and discharge him and he will get more sick.

 

Employer has said the soonest my husband can have time off again is 2nd week of January.

My son can not wait 1 1/2 moth for tests just too suit them.

 

Is there any thing we can do.

Does my husband have any rights or are we just going to have to accept it and watch are son get more and more sick.

 

Sorry this is long

 

Any advice would be much appreciated

Thanks in advance

[dx100uk]

doesn't seem right to me

he'd have one hell of a compensation claim if he did take the time off and it went to an employment tribunal if they did sack him.

[Emmzzi]

here is the legal position

 

emergency parental leave is to organise someone to do the caring; not to do the caring yourself

 

This is not an emergency, it is planned and known about in advance.

 

Therefore the employer is technically correct

 

That said, I think the employer is being a heartless swine. Me, I'd take the time off and let the cards fall where they may.

 

- what advice do the patient service at Alder Hay have? (can't be the first time this has happened)

- anyone else in the family to help?

[unclebulgaria67]

here is the legal position

 

emergency parental leave is to organise someone to do the caring; not to do the caring yourself

 

This is not an emergency, it is planned and known about in advance.

 

Therefore the employer is technically correct

 

That said, I think the employer is being a heartless swine. Me, I'd take the time off and let the cards fall where they may.

 

- what advice do the patient service at Alder Hay have? (can't be the first time this has happened)

- anyone else in the family to help?

 

Agree. Think the employer is technically correct. This is thankfully not currently a life threatening emergency. It is planned hospital tests and are

 

What you are going to do is see what help you can get locally. Hospital, council social services, schools or other local service provider might look after the other children for a few hours while your Son is in hospital having the tests done. Not ideal, but better than your husband risking his job.

[Teddybear154]

thank you all for you replies I guessed there was nothing we can do. Unfortunatly there is no one we can ask for help my mother died years ago of cancer, my father is abusive and lives other end of country and sister lives in Australlia. My husband is French and all his family are in the south of France.

My children don't go to school due to their medical conditions local education authorities would not give funding for the extra help they need to be able to attend school. So have had to home educate them.

 

No one will look after them because of there Autism and other medical conditions. They will not cope with being left with a stranger. Because of there Autism. They need there routine and their sensory equipment at home. My second oldest son needs medication every day . And needs to be supervised all the time especially when eating as he chokes due to chewing problems.

 

I guess we will have to wait until January.

You might not think it's a emergency but you have not been dealing with this every week for 7 months, lying in my arm burning up, covered in rashes and crying in crippling pain all over his body. It's not nice.

 

If it's what they think it might be they need to find out and treat it sooner rather than later as left in treated it can lead to life threatening complications.

 

He is not going in to hospital for a few hours he has got to go in to hospital for 3 day of test. Alder Hay is not near by it's a 3 hour drive from me so can't just dive back and forth throughout the day.

 

Any way thank you for confirming what I already thought.

[ericsbrother]

what dies he do for a living? can he make arrangements to work extra or other hours to make up the time?

If he is office based then in reality no job is really that time critical and even projects with deadlines can be worked on from home/in other hours. If he is in a production type role then the only real alternative is compassionate leave without pay

[firstclassx]

thank you all for you replies I guessed there was nothing we can do. Unfortunatly there is no one we can ask for help my mother died years ago of cancer, my father is abusive and lives other end of country and sister lives in Australlia. My husband is French and all his family are in the south of France.

My children don't go to school due to their medical conditions local education authorities would not give funding for the extra help they need to be able to attend school. So have had to home educate them.

 

No one will look after them because of there Autism and other medical conditions. They will not cope with being left with a stranger. Because of there Autism. They need there routine and their sensory equipment at home. My second oldest son needs medication every day . And needs to be supervised all the time especially when eating as he chokes due to chewing problems.

 

I guess we will have to wait until January.

You might not think it's a emergency but you have not been dealing with this every week for 7 months, lying in my arm burning up, covered in rashes and crying in crippling pain all over his body. It's not nice.

 

If it's what they think it might be they need to find out and treat it sooner rather than later as left in treated it can lead to life threatening complications.

 

He is not going in to hospital for a few hours he has got to go in to hospital for 3 day of test. Alder Hay is not near by it's a 3 hour drive from me so can't just dive back and forth throughout the day.

 

Any way thank you for confirming what I already thought.

 

Nobody on here will disagree that, to you, it feels like an emergency.

 

Unfortunately, the law does not support your position.

 

I'd suggest asking some charities specialising in autisim/learning difficulties for some support/advice.