given final warning for breach of contract that haven't signed

[John63]

Hi, I need help with an employment issue, my employer gave me a final warning because of an alleged breach of the terms and conditions of a new employment contract that I haven't signed nor agreed to it and I'm working under protest. Can I submit a claim to the employment tribunal. What are my best options for legal action.
Thanks

[ULA]

Sorry but there is not enough information to go on here so I will need to ask you more questions. Not every wrong an employer is perceived to have done by an employee warrants legal action.

The questions:

1. Why are you working under protest?
2. Does you employer know you are working under protest and if so how did you communicate this to them?
3. How was your final written warning issued i.e. were you subject to a disciplinary hearing?
4. Have you appealed the warning or are you planning to if you are still in the timescales for raising an appeal?

[John63]

Hi, thank you for your response, I haven't logged in for a few days, as for your questions:

- I'm working under protest as I didn't accept being forced into a new contract as I already agreement with my employer for almost 2 years without any issues then a new HR tried to impose a new contract and terms and conditions which I refused to sign and to agree to them.

- Yes the employer is formally informed that I work under protest and this reaffirmed from time to time in writing.

- The final warning was a result of a disciplinary hearing where I've been accused of breaching the new terms and conditions of the a contract that I haven't signed nor agreed

-I've appealed the final warning through the company procedure and as this reached nowhere and initiated ACAS early conciliation

The facts about the case: The new contract is not registered as new employment in HMRC as only the old one stands there as info, being asked to sign a back-dated contract which I refused as stated that this amounts a breach of the law to sign and submit a backdated contracts.

The question is how to proceed and where to refer the case, does it have merits to be pursued in employment tribunal as being told by the acas councillor that I have a chance if they sack me but not otherwise, or to seek a legal professional who to brings it to court.

I would be grateful for any advice and help what to do with my case.

Many thanks

[ULA]

You have not specified what the contractual term/s are that are being imposed on you, because in some cases changes may be considered reasonable and they may have followed a fair procedure to initiate the variation to change your contract of employment.

I am unclear as to what you mean by "The new contract is not registered as new employment in HMRC as only the old one stands there as info.." as contracts of employment do not need to be registered with HMRC.

Until I understand more it is difficult it advise on you next steps.

[John63]

Hi, thanks for your reply. They gave me a completely new contract, so this wasn't just a little change of the existing contract. I refuse to sign the new contract and formally announce that I'm working under protest against the new contract's terms and conditions. Hope that clarify the situation

[atticus]

When was the new contract issued?

Were there any changes in it that benefitted you?

How long have you been working "under protest"?

[John63]

The contract was presented in June, but the document was backdated to May. I refuse to sign it, and since then, I have worked under protest, and from time to time, I'm reaffirming my position against the new imposed against my will contract. The new terms and conditions are putting a restriction on what I can do in my free time as I'm not allowed anymore to do any other work anyone else, including unpaid charity work. I have worked as a driver for many years and always observed the laws and regulations in my work, including the rest periods, and reported them accordingly to my employer. As I sometimes used to do some food delivery in my free time at the weekends, I was accused by the employer of breaking the new terms and conditions and given a final written warning, so that is my case. I would greatly appreciate any advice on what to do in my situation

[ULA]

"The new terms and conditions are putting a restriction on what I can do in my free time" - is this the only change to terms and conditions or have things like your hours of work, location, holidays, benefits been changed?

Was there a variation clause under your previous contract?

Are there other contractual changes that you are unhappy with or just this one?

How much time would you spend on these other driving activities each week?

What are your contractual hours of employment?

[John63]

Hi, thank you for your replay
I've carefully checked the contract, and there is no variation clause in the main document
The only disagreement I have is the exclusivity clause, which forbids me to work for anyone on a voluntary or paid basis. The problem is I'm an orthodox Christian, and when I have to do things for our community, like voluntary work, I can't.
According to the contract, my working hours are variable according to the demand of the job and in accordance with the provisions of the road transport working time regulations 2005
My normal working days are set as 11 days in 14 days period, and bank holidays are classed as normal working days

[ULA]

Working under protest is not a long term solution. There are two options:

1. You and your employer try to resolve the situation and I am not sure from your posts, what process has been engaged to do this.
2. Taking legal action which would be a rather drastic measure as it would mean you resigning and claiming constructive dismissal - a hard claim as the burden of proof would be on you as the claimant.

[John63]

Thank you for your response.

All of the options of trying to resolve the issue with the employer have been tried, but they simply refuse discussion. Their insistence on forcing a backdated contract is particularly telling as Backdating a document is potentially a criminal offence under section 17 (false accounting) or section 19 (false statements by company directors) of the Theft Act 1968.

As the new contract is only for one year and will expire this year, my employer will have two options: to offer me a new one or my employment to end. In all the cases, I'm thinking of bringing the case to the employment tribunal when I'm dismissed.

[atticus]

Neither of those provisions of the Theft Act 1968 apply.

[Pezza54]

www.acas.org.uk
Exclusivity clauses in employment contracts are against the law (Employment Rights Act 1996) if the employee is on a zero-hours contract or earns below the minimum wage

Please read "Exclusivity Clause: What Employers Need to Know" at www.davidsonmorris.com

[Pezza54]

Has your employer accused you of working for another organisation during or outside your normal working hours (paid or voluntary)?

Do you have use of a company vehicle for personal use?

[John63]

Hi, thank you for your comment
No, I don't use a company vehicle for personal use. I was accused that I was breaking the exclusivity clause in my weekend days off despite that I always fallowed strictly the rest periods after and before work as a driver.