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Employment law advice


Fowllyd
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I know from previous threads that there are a few posters here who have great knowledge and expertise in employment law and related matters (Viking Warrior springs to mind), so I thought I'd pose a question. Any advice gratefully received, needless to say.

 

My wife has worked for the past nine years as an LSA at a local school. She has a permanent contract of employment, which was last changed a couple of years back when she started working one to one with a child with very specific needs. She currently works 23 hours per week. Her school has just carried out a re-appraisal of LSA requirements (driven entirely by budgetary constraints). They have decided that any one-to-one work with statemented children (which is exactly what my wife does) will be carried out on a different basis, with any LSAs thus occupied being employed on a temporary contract. At first she thought this would be OK, as the child she works with will be at the school for another two years.

 

However, two additional changes are now proposed. First, the number of hours she works per week is to be reduced to around 18.5; second, the temporary contract will be for 40 weeks a year. It seems pretty clear that she will not be paid for any time that she is not actually at work (and I'm assuming that this will include time off sick and suchlike). So, we'll be significantly worse off. It's a shabby way to be treated after nine and more years of working there, but that isn't really the point.

 

My question is how exactly does with work in terms of employment law? If a change is made to your contract of employment, you have to agree to this. In my wife's case, her current contract of employment is apparently going to be ripped up and replaced by a new one on massively worse terms. Should she choose not to agree to this, what will happen? Will she have to be made redundant and paid off? Or is there some sneaky mechanism whereby the school will get out of doing this?

 

As you'd expect, she's currently looking round for another job, but I'd still like to know what the options may be regarding her current position.

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Fowllyd

 

I would send you a PM about this but I'm not a full member anymore . But that's a different story

 

Sorry to hear this has happened to your wife but it's not an unusual situation sadly .

Going from 23 hours to 18.5 is generally not seen as making the job redundant , had it have been a reduction of more than 50 hours yes that is clearly a redundancy situation

From what I read in your post your wife is being put on a 40 week term time contract not onto a temp contract and will take her holidays as usual , during non term time attendance . We have similar roles . Her continuous service and holiday etc will remain in tact although maybe pro rata to reflect the reduction in hours .

What would be helpful for me would be to see a copy of the new contract or information she has been given so I can advise you more appropriately. I know I should do this but here is an email address you can send me further details removed nowhehasseenit@btinternet.com

I hope I don't get any numpties sending me spam or abuse

 

Regards Viking

Edited by St Chalet
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Ps , I don't think your wife's contract will be ripped up , there will be a change to her contract re hours but the main t&c's should remain in place as per her existing contract .

I would have expected the council to have had dialogue with the respective unions and staff re these changes . If she refuses and resigns then there is not a redundancy situation as such as they are still offering her employment . This is potentially constructive dismissal not an unfair dismissal from the info you have posted . They may offer your wife additional hours else where to make up the reduction

 

Viking

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Can someone who has worked somewhere for under 2 years be fired with no explanation? Or does the employer still have to go down official performance improvements / redundancy procedures?

 

Its all to do with the period that you can use a tribunal, it used to be that you had to work a year but there was talk of extending it to two ( except in discrimination cases ) . My company still insist mangers follow the correct company policy regardless of service length , however they are more likely to dismiss if you're under a year as there will be no chance of paying out compo ( except discrimination cases)

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Can someone who has worked somewhere for under 2 years be fired with no explanation? Or does the employer still have to go down official performance improvements / redundancy procedures?

 

I think it's back up to two years now, effectively 23 months with notice. I think it would still be wise to follow the appropriate procedures.

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Can someone who has worked somewhere for under 2 years be fired with no explanation? Or does the employer still have to go down official performance improvements / redundancy procedures?

 

Welcome to the Tory government! They have had this going for a few years now, no FOC tribunals anymore either!

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You have to have a minimum of two years service to be eligible for redundancy pay .1 years service to submit an et1 to a tribunal for unfair dismissal .yes there isa cost if Your not successful but no cost if your successful .

 

So 16 I'm not sure who you work for but there are some bad practices out there. Sounds like you work for such a company.

 

Hole punch don't blame the Tories for changes to tribunals over the years . There are other factors including an

Increase in frivolous and vexatious claims Etc etc .

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You have to have a minimum of two years service to be eligible for redundancy pay .1 years service to submit an et1 to a tribunal for unfair dismissal .yes there isa cost if Your not successful but no cost if your successful .

 

So 16 I'm not sure who you work for but there are some bad practices out there. Sounds like you work for such a company.

 

Hole punch don't blame the Tories for changes to tribunals over the years . There are other factors including an

Increase in frivolous and vexatious claims Etc etc .

Cheers Viking.

 

I've been emailing the director who has listed his concerns and how he's been more than fair blah blah blah but that still doesn't cover up for the fact that not FORMAL processes have been followed.

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You have the right to ask for a written statement from your employer giving the reasons why you’ve been dismissed if you’re an employee and have completed 2 years’ service.

 

You must have worked for your employer for a minimum period before you qualify for the right to claim unfair dismissal at a tribunal. If you’re classed as an employee and started your job on or after 6 April 2012 - the qualifying period is normally 2 years

I thought you might find that helpful before making too much of a nuisance of yourself.

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You have the right to ask for a written statement from your employer giving the reasons why you’ve been dismissed if you’re an employee and have completed 2 years’ service.You must have worked for your employer for a minimum period before you qualify for the right to claim unfair dismissal at a tribunal. If you’re classed as an employee and started your job on or after 6 April 2012 - the qualifying period is normally 2 years.

 

If this is the case, why does my employer have no b*llocks in this area at all? As an example, recently a One Year Fixed Term was employed who turned out to not be up to the task and failed to show up at work at all on occasions. My boss had enough and wanted to give the boot, but got the old 'it's not that simple from HR'. Clearly from that statement, it is. What are they so worried about, if that is the law?

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Hutch

 

I would be interested to see what was in Osvaldo's contract. I suspect that there was some caveat in his contract that we were liable to pay heavy compensation costs to third parties, if we had released him early or sacked him. Thanks Mr NC

Given the seriousness of his behaviour at Saints, this would normally have warranted dismissal for gross misconduct by any other employee.

 

The club i'm guessing had their hands well and truly tied due to his contractual status and couldn't go down that route, instead they decided to farm him out to avoid any serious financial penalty we might have incurred by dismissing him.

 

From a Professional HR perspective , I would love to get my teeth into that particular case.

 

Would make an excellent case study.

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It's not complicated - we didn't sack Osvaldo because we didn't want to write-off £15million quid and we didn't want the publicity circus that would come with sacking an Italian international footballer.

 

Clearly, if he was mincing round Staplewood like a dirty pirate and headbutting people, we could have sacked him but it would have been pointless.

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Hutch

 

I would be interested to see what was in Osvaldo's contract. I suspect that there was some caveat in his contract that we were liable to pay heavy compensation costs to third parties, if we had released him early or sacked him. Thanks Mr NC

Given the seriousness of his behaviour at Saints, this would normally have warranted dismissal for gross misconduct by any other employee.

 

The club i'm guessing had their hands well and truly tied due to his contractual status and couldn't go down that route, instead they decided to farm him out to avoid any serious financial penalty we might have incurred by dismissing him.

 

From a Professional HR perspective , I would love to get my teeth into that particular case.

 

Would make an excellent case study.

That's the point I was makng to Mikey. I think a "one year fixed term" contractor is different from "If you are classed as an employee..."

 

It's not complicated - we didn't sack Osvaldo because we didn't want to write-off £15million quid and we didn't want the publicity circus that would come with sacking an Italian international footballer.

 

Clearly, if he was mincing round Staplewood like a dirty pirate and headbutting people, we could have sacked him but it would have been pointless.

 

OK Osvaldo was probably not a good example to pick. Why do you think no club sacks any of it's players before the end of their contract even when they won't actually play again and leave on a free transfer? Why do they keep paying them for doing nothing up to the end of their contract? Why did we keep paying Adkins after Pochettino came in?

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That's the point I was makng to Mikey. I think a "one year fixed term" contractor is different from "If you are classed as an employee..."

 

 

 

OK Osvaldo was probably not a good example to pick. Why do you think no club sacks any of it's players before the end of their contract even when they won't actually play again and leave on a free transfer? Why do they keep paying them for doing nothing up to the end of their contract? Why did we keep paying Adkins after Pochettino came in?

 

We kept paying Adkins because we had no fair reason to dismiss him. He wasn't sacked for misconduct or for any other fair reason, he was just replaced. Had he brought a claim against the club he would have won. Therefore we made a settlement with him. Standard practice when dismissing anyone without fair grounds and even more so when they are on a large salary. It's also about market reputation - if we sack people and try to pay them the bare minimum legal entitlement we aren't going to be a very attractive employer in an industry like football.

 

This is why players aren't sacked as well. There would rarely be a fair reason for doing so and even if there was it could get messy and make other people think twice about joining.

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We kept paying Adkins because we had no fair reason to dismiss him. He wasn't sacked for misconduct or for any other fair reason, he was just replaced. Had he brought a claim against the club he would have won. Therefore we made a settlement with him. Standard practice when dismissing anyone without fair grounds and even more so when they are on a large salary. It's also about market reputation - if we sack people and try to pay them the bare minimum legal entitlement we aren't going to be a very attractive employer in an industry like football.

 

This is why players aren't sacked as well. There would rarely be a fair reason for doing so and even if there was it could get messy and make other people think twice about joining.

What sort of claim would that be?

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Benjii

 

I have no idea what you do , you maybe right about the adkins , but then again you may not

but employment law and contractual status can be quite complex matters to resolve

Its not always black and white as you seem to imply

 

Under the Employment Rights Act of 1996 there a six reason you could fairly dismiss an employee.

 

Capability or lack of qualifications - He was pretty useless

His conduct - His behaviour speaks for its self

some other substantial reason that could justify his dismissal - Just combine the first two points

 

A good employer would always follow correct procedures and practice. (Well in most cases)

 

Sometime terminating a persons contract can be very complex, especially if the employee does not accept they have seriously breached their terms and conditions . Welcome to the real world Benjii

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Benjii

 

I have no idea what you do , you maybe right about the adkins , but then again you may not

but employment law and contractual status can be quite complex matters to resolve

Its not always black and white as you seem to imply

 

Under the Employment Rights Act of 1996 there a six reason you could fairly dismiss an employee.

 

Capability or lack of qualifications - He was pretty useless

His conduct - His behaviour speaks for its self

some other substantial reason that could justify his dismissal - Just combine the first two points

 

A good employer would always follow correct procedures and practice. (Well in most cases)

 

Sometime terminating a persons contract can be very complex, especially if the employee does not accept they have seriously breached their terms and conditions . Welcome to the real world Benjii

 

Dismissal is different from redundancy of course. I'm sure you know this Viking, but the two are often confused.

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Whitey

 

Yep fully aware of the difference between the two, Redundancy is a different ball game.

Im not going to do a sermon on that side off life, but as you say some do get the two confused.

I have an incling that Nigel was sent on gardening leave or had a handsome PILON period built into his severance package.

I would say a minimum of 3 months for that level of post if not longer.

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