Collective agreements

[Guest]

Hi, it's my first time on the board, I see there's been very helpful replies so thought I'd test my luck. I'm approaching my cut-off date to send my tribunal application and am quite stressed as I can't find the information I need online and can't afford legal advice, so any insight would be greatly appreciated

My grievance is for breach of contract relating to my holiday entitlement terms, there are 3 sets of terms which are in play and I am not sure which is contractually enforceable.

*- 2007 collective agreement - written in the company handbook
*- 2016 collective agreement - verbal agreement, not written anywhere, no documentation to support it
*- 2017 individual contract (start of employment) - expressly states holiday entitlement that does not match any of the above

The issue is that the company has reduced my holiday entitlement, claiming that the 2016 collective agreement supersedes my 2017 contract. A union rep has confirmed that the collective agreement was verbal in nature and predates my contract, thus has no effect upon it as the individual terms are prevalent. Is this true?

As collective agreements are incorporated into my contract I asked the company to provide a document of the details of the agreement (what effects, who it affects, the date, the parties in agreement). They replied that there is no documentation and that the details of the collective agreement are amalgamated into the company handbook.

However, the handbook does not contain this detail, it contains details of the 2007 collective agreement as it has not been updated for 12 years. The Employment Rights Act 1996 states collective agreements must be reasonably accessible, so the company has failed to comply with this legislation. Is the 2016 agreement valid/enforceable if it is not documented anywhere?

Which of the 3 terms would you consider valid?

The company never notified me that they had changed my entitlement, I noticed the change on my payslip and raised the issue. It's certainly dishonourable behaviour but I'm unsure if they are required to notify for changes by collective agreement?

Finally, I feel my appeal hearing was conducted unfairly. The HR manager stated the decision was made and would not be reviewed before I even had chance to talk and when I did try and make my case he consistently interrupted me in an aggressive, intimidating manner. He's well known to be a bully and I think he was trying to make me snap, I didn't but his behaviour prevented me from arguing my case. He also threatened to move me off -shift. I don't know whether I should raise this in the request for the final grievance hearing or just let it slide. Would it aid me in the tribunal? I was unrepresented so if the other manager in attendance backs up the HR manager (which I have no doubt he will), it's 2 against 1 and they could fabricate anything they wished about me.


Thank you for any advise you can offer
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[Amethyst]

Your 2017 contract is the correct document to rely on. If it is specific about holiday entitlement rather than referring to the handbook. You mention you noticed they changed your holiday entitlement by your payslip ? Does that mean before that point your entitlement was correct as per your employment contract ? It may assist if you can say what your contractual entitlement was, what they changed it to and what the collective agreements allege it to be.

[a1234]

Thank you for your reply, I am the OP, just registered. The case gets complicated due to the below, which is why I excluded it initially.

My entitlement was offered at 23.4 days during the recruitment process (converted from hours).

The contract states 26 days as an express term which does not match the initial offer but I assumed the entitlement had been increased since then to balance out a reduction in shift pay that happened during the recruitment process.

When I started work my entitlement was awarded at 16 days in accordance with the alleged 2017 agreement. I disputed this and was awarded the 23.4 days I asked for inline with the recruitment offer. I didn't ask for the 26 days as in the contract as I belt honour-bound by the verbal offer before, which in hindsight was a big mistake.

18 months later, the entitlement was reduced to 16 days again and the company has stated that the previous entitlement awarded was an administrative error. I only really want the 23.4 days but as I have no claim for it (it's not in writing) I have fell back to the contracted terms.

They also applied the change retroactively, so my entire 2019 entitlement was changed, rather than pro-rated from the date of change.

I raised dispute both times the 16 days were applied to me, but I never raised dispute to the 23.4 days (I was happy with it) despite my contract stating 26 days, I am unsure if this has impact on the case.

Also, the handbook is not incorporated into my contract. The employer states it has contractual effect as the handbook states this, but without incorporation I dispute this. If the handbook contains collective agreements, which are incorporated, then it does in effect become contractual by my understanding. But I do not understand if the whole handbook becomes incorporated, or just specific terms of the collective agreement.

I hope that makes sense, I appreciate your advice.

[Amethyst]

What hours / days etc do you work ? It may be the 24 days is pro rata'd to give you 16 ? Actually checkhttps://www.gov.uk/calculate-your-holiday-entitlementwhat your minimum entitlement is- that will give a better idea where you're starting from. 24 days could be minimum entitlement from your shift hrs ( say 5 shifts of 8 hrs over 7 days ) then if they use bank holidays as part of entitlement ( generally 8 days) leaving 16 'free' holiday days. Obviously that's a complete guess but looking at what your stat entitlement is is a good start point to see where the 16 and 23.4 and 26 might have come from

Ill move your thread to the employment forum and tag someone who can help further on the collective Agreement issue tomorrow

[a1234]

Thank you again for your reply and for moving the post.

I work 34.5 hours per week over 3 days (11.5 hour shifts). The entitlement from the alleged collective agreement is above statutory minimum and is not the issue (bank holidays awarded in addition).

The company initially claimed that the 16 days is calculated by pro-rating the 26 days stated in my contract. I disputed the legality of this claim as my contract contains express terms with no statement or condition that would allow my entitlement to be modified (pro-rated, salary terms do contain this condition). The company replied this is implied, which is also untrue as the business efficacy & officious bystander tests fail.

The company appears to have abandoned their argument on this point and all other points counterclaims and the sole issue is now whether the alleged collective agreement is enforceable as 1) it predates my contract which contains express terms stating my holiday entitlement, and 2) there is no documentation or evidence of such collective agreement made accessible to the employees despite it being in effect for 2+ years.

I've read hundreds of tribunal cases on the gov.uk website and the only similar case I found was that in which the tribunal deemed a collective agreement unenforceable as the employee was not aware of it.

[ULA]

Hi, I have moved your thread and hopefully can provide a response, however I just need to be very clear I have the facts straight, on the specific point that is still the issue for which you may bring an Employment Tribunal (ET) claim.

Your contract of employment stated a number of days holiday entitlement which did not indicate any pro-rata requirements due to the hours you worked. The company are saying that the 16 days you should be entitled to are in accordance with the collective agreement of 2016, which is not in writing and has not been added as an update to the 2007 collective agreement the contents of which are in the company handbook.

Does your contract of employment make it specific the parts of your terms that are subject to the collective agreement? Was holiday entitlement one such term and if so which collective agreement did it refer you to?

Have you exhausted your companies internal procedures?
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[a1234]

Hi, thank you.

What you have said is correct.

The contract (well, a supplement called "Standard Conditions of Employment") states "Employment with the company is in accordance with and where appropriate subject to [...] collective agreements made from time to time with the recognised Plant Council representing associates within the Company" ...

"The collective agreements mentioned above provide details of the rate of pay, method of calculating pay, benefits and conditions which are currently in force and relate to you job/classification. Copies of all documents referred to in this employment contract can be inspected in the Human Resources Department by prior arrangement"

I have been advised that holidays are encompassed under "benefits and conditions" but the company has failed to provide any evidence of this collective agreement despite multiple written requests, they keep referring me to the handbook which does not contain the agreement.

My company has a 3 stage grievance process, I have had the outcome of the 2nd stage and as the 3rd stage involves director level staff I need to ensure I have a strong claim and as much knowledge surrounding collective agreements as possible, hence asking for help here.

Thank you for your response.

[ULA]

Is there any collective agreement in place in the 2007 handbook regarding holiday entitlement, although it would have been subject to the changes brought in during 2009 increasing the annual leave entitlement unless the 2007 agreement gave more than this. *

[a1234]

I'm not sure exactly if the details in the handbook are derived from collective agreements or not, this is an assumption based on the company stating that collective agreements are amalgamated into the handbook and the company refrains from sharing such information. The entitlement stated is 234.6 hours (20.4 days for the relevant shift) so is above statutory minimum.

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[ULA]

It should be clear which parts of the handbook relate to collective agreements, however I guess from what you have said that is not very evident.

Is there a part of the handbook that deals specifically with holiday entitlement?

In your individual contract of employment does make clear any clauses that are covered by collective agreements?

[a1234]

There isn't any specific section for collective agreements but the handbook states it is published with the co-operation of the Plant Council, which parts are derived from collective agreements or from the company is not made clear. I will copy extracts from the handbook rather than try and interpret it.

"This Associate Handbook contains important information about what it means to be an Associate of [company] and how the company will conduct itself as an employer. Some of the information covered is also included in more detail in individual Employment Contracts. As terms and conditions can vary because of grade, there may be some differences between specific terms and conditions of employment and the more general ones shown in this Handbook. Where this is the case, those detailed in an Associate’s Employment Contract will prevail. From time to time, some of the details may change. The company will inform Associates when any changes are made. A number of sections within this Handbook are summaries of company policies that are available from the HR Department and the [company] intranet"

Section Two (Terms and Conditions of Employment) and Section Four (Code of Conduct) form part of the Terms and Conditions of Employment for all Associates, irrespective of grade. Terms and Conditions of Employment that are specific to grade, are detailed in an Associate’s individual Employment Contract or Section Three of this Handbook. The information detailed in this Handbook, is agreed with the full co-operation and approval of the Plant Council. Any changes or modifications to the Terms and Conditions detailed in this Handbook, will for non management Associates be subject to full consultation with the Plant Council prior to any change being implemented. For management Associates, any changes to their terms and conditions will be communicated to them by their Manager. Any subsequent alteration to terms and conditions of employment will be notified to Associates personally or through Associate notices. Such alterations will also be recorded within one month of the change in the relevant documents held by the HR Department.

The handbooks last revision was 2007, the collective agreement in question was pre-2017 (date unknown, but I've stated it as 21016 previously). There has been no notification to me (as I wasn't employed when the alleged change was agreed) but more importantly the company has no record of the collective agreement which does not comply with the statement above.

Holiday entitlement is specified under section two, it states 234.6 hours. The company claim the latest collective agreement is 16 days plus bank holidays.

Employment with the company is in accordance with and, where appropriate, subject to:
• the specific and standard conditions of employment contained in Associate’s individual Employment Contract;
• terms and conditions contained in this Handbook;
• current employment standards (detailed in the Code of Conduct) that form part of this Handbook and those conditions specifically applying at an Associate’s work location;
• the rules of the [company] Pension Scheme which is the subject of a contracting-out certificate issued under the Pensions Schemes Act 1993;
• relevant employment legislation;
• company policies and procedures (including [company] Guidelines).
Copies of all documents referred to in the Employment Contract and this Handbook can be inspected in the HR Department by prior appointment.

This text is in my contract word-for-word, except the red text is omitted and replaced by;

• collective agreements made from time to time with the recognised Plant Council representing associates within the Company;

[...]

The collective agreements mentioned above provide details of rate of pay, method of calculating pay, benefits and conditions which are currently in force and relate to your job/classification.

Copies of all documents referred to in this Employment Contract can be inspected in the Human Resources Department by prior appointment. Any subsequent alteration to you conditions of employment will be notified to you personally or through notice board statements. Such alterations will also be recorded within one month of the change in the relevant documents held by the Human Resources Department.

I pointed this out in the grievance hearing when the company claimed the handbook had contractual effect, which it does state within in. However, it's not incorporated in my contract and was not provided with my contract pack. The company then stated the handbook is the collective agreement and thus the handbook is incorporated. Though whether the whole handbook is the collective agreement or not is a mystery.

Plant Council

The company and two Trades Unions, the [censored] and the [censored], have signed a Recognition and Procedure Agreement for [the work establishment].

To note here is that the recognised trade union is neither of the 2 listed in the statement above.

Thanks again for reading and for your time.
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