suspended

[thbb]

Re: suspended

Got this today, a friend told me today every member of staff is being interviewed today, so I think I have stirred him up, and I have a feeling dark forces are at work....

Btw, I have a document I would like someone to look over via private email if anyone would be prepared to cast their eye??

Ths is the email recieved by me today:

Dear

Your email dated 3 April 2012 refers.


For your information a contract has been in place with HR Answers Ltd since 2009 to carry out all aspects of the Company's HR. It is quite the norm for a small Company such as ours to outsource their HR and permission of the staff is not required for this.

I note your comments re communication and can confirm that all communications will be via email and post until such time as the investigation has concluded.

[Shadowcat]

Re: suspended

OK will look into that. By all means send doc, maybe send it to two people, two heads are better than one. I'll gladly have a look over it.

[teaboy2]

Re: suspended

Got this today, a friend told me today every member of staff is being interviewed today, so I think I have stirred him up, and I have a feeling dark forces are at work....

Btw, I have a document I would like someone to look over via private email if anyone would be prepared to cast their eye??

Ths is the email recieved by me today:

Dear

Your email dated 3 April 2012 refers.


For your information a contract has been in place with HR Answers Ltd since 2009 to carry out all aspects of the Company's HR. It is quite the norm for a small Company such as ours to outsource their HR and permission of the staff is not required for this.

I note your comments re communication and can confirm that all communications will be via email and post until such time as the investigation has concluded.

They may well have a contract, though the point is you do not have a contract with the HR consultants, so their contract with them is between them, and nothing to do with you par se. You therefore do not have to conform to anything the HR consultants do or say and do not have to acknowledge them in anyway, let alone entertain them. The fact you have no written contract either only backs up this point, as their clearly is no written term under contract stating you must comply with the HR consultants, and they can not insist it is an implied term as that would be unfair in the legal sense.

[thbb]

Re: suspended

Thanks both, can you point me to where I can pm you the doc please?

[Shadowcat]

Re: suspended

Regarding outsourcing HR, you have the right to request they give you all information held about you on file, they have strict rules about what they can and can't hold, i.e. it has to be 100% accurate. The law clearly states that with regard to outsourced HR and payroll, all personal data must be accurate and, where necessary, kept up to date.

Get them on the backfoot, you'll feel very empowered.
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Single click on our names or avatar and you'll see 'PM Shadowcat' listed.

[labman]

Re: suspended

He may be right in that it is normal for a small company to outsource HR functions.It's actually quite normal in a big organisation as well.

Where this falls short is the contract being in place since 2009. Have you ever been given a copy of this contract? A contract, by definition is as follows, taken from a law dictionary:

A legally binding agreement. Agreement arises as a result of offer and acceptance, but a number of other requirements must be satisfied for an agreement to be legally binding.

1. There must be consideration
2. The parties must have an intention to create legal relations.
3. The parties must have capacity to contract.
4. The agreement must comply with any formal legal requirements.
5. The agreement must be legal.
6. The agreement must not be rendered void either by some common-law or statutory rule or by some inherent defect, such as operative mistake.


it further goes on to define Contract of Employment (I won't type the whole lot, though it is here for reference should you want it):

A contract by which a person agrees to undertake certain duties under the direction and control of the employer in return for a specified wage or salary. The contract need not be in writing, but under the Employment Rights Act 1996 the employee must be given a written statement of terms of employment.

Obviously both these definitions reinforce what I was going to say in the first place, which is a contract cannot be imposed on you, it has to be agreed between two parties.

[thbb]

Re: suspended

Teaboy, can I use the word incorrect rather than unfair under law - thanks

[labman]

Re: suspended

Are we also not missing something very obvious here?

The consultant visited the OP at home, out of work hours, while he was on holiday to deliver this.

I actually do not think he did commit tort of trespass by doing so that time. Tort of trespass would only be committed once the implied licence has been revoked -ie- if they were to do it again.

However, contacting an employee while on holiday, or even out of work hours, is a big no no. I would have thought this issue should also be added into the catalogue of other mistakes made so far.

I still feel, as per my previous post about contracts, that a point should be strongly made about the inability to impose a contract of employment on somebody, and the fact that legislation has not been complied with as the OP was not given a written copy of any agreement (not surprising as he hadn't agreed anything, so any contract is null and void).

[thbb]

Re: suspended

Thanks for the clarification Labman, will put that to him, thank you

[Shadowcat]

Re: suspended

Indeed, as they are already breaking employment law by not providing you with a written statement of terms and conditions, I personally would 'fill my boots' on this and ask in writing why no contract was ever written. Some HR 'expert', she's gone straight in with size 12's knowing there was no written contract. Doh.
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Teaboy covered the trespass I think - no flies on TB.

[teaboy2]

Re: suspended

The legal terminology would be unfair term of contract - The reason for this is due to you not receiving a written statement outlining the terms of your contract, therefore you were not aware of the contract the Employer had with the HR consultant. And in order for you to be in agreement to the use of an HR consultant regarding your own employment their must be a terms in your contract to that effect. As you have not received a written contract of written terms of employment, then no such term regarding the HR consultant exist. They can not rely on it being an implied term as the employment act it self is clear as to what is implied term in regards to employment contracts. So for them to try and force the use of HR consultants on you is clearly an unfair term of contract as such term does not exist. To try and enforce a terms under a contract when such a term does not exist is unfair and unlawful, and probably amounts to breach of contract too.

Basically state in the letter unfair and unlawful term - As no term exists in your implied employment contract (since you have not signed a written one), nor can they as an employer claim it is an implied term as the employment act is clear as to what terms are implied and under contract of employment. Therefore regardless of the employer contract with the HR consultant, it does not extend to your contract and therefore the HR consultant can not be used without your agreement first, which you do not intend to give.
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Are we also not missing something very obvious here?

The consultant visited the OP at home, out of work hours, while he was on holiday to deliver this.

I actually do not think he did commit tort of trespass by doing so that time. Tort of trespass would only be committed once the implied licence has been revoked -ie- if they were to do it again.

However, contacting an employee while on holiday, or even out of work hours, is a big no no. I would have thought this issue should also be added into the catalogue of other mistakes made so far.

I still feel, as per my previous post about contracts, that a point should be strongly made about the inability to impose a contract of employment on somebody, and the fact that legislation has not been complied with as the OP was not given a written copy of any agreement (not surprising as he hadn't agreed anything, so any contract is null and void).

Agreed labman, the reason i mentioned Tort of trespass and that he had now revoked whatever license they thought they had, to make it clear that any future such visit would be a tort of trespass.

I think its best we kept all the arguments about failure to comply with employment rights regarding failure to give written statement of employment to the OP, untill we have more information about why they have suspended him in the first place. Basically lets give them some loose rope to hang themselves with then we can tighten the rope very quickly by hitting them hard with all their failures to comply with legislation etc. Trust me, its pretty clear their is a hell of a lot more breaches of legislation to come from the employer and their hired hands yet. So we should keep our aces up our sleeves for the time being.

[labman]

Re: suspended

Indeed, as they are already breaking employment law by not providing you with a written statement of terms and conditions, I personally would 'fill my boots' on this and ask in writing why no contract was ever written. Some HR 'expert', she's gone straight in with size 12's knowing there was no written contract. Doh.
It's not so much the fact that no contract was ever given, it's more no contract could ever have been given because a contract is agreed between two people - see the law dictionary term of 'Contract of Employment.'
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Teaboy covered the trespass I think - no flies on TB.

The original visit was not, to my mind Tort of Trespass. However, any implied licence has now been revoked, so to a large extent that is irrelevant.

[Shadowcat]

Re: suspended

OK slip of the wording - no written terms and conditions.

[thbb]

Re: suspended

this is what I have drafted so far;

[FONT='Verdana','sans-serif']Dear [/FONT]
[FONT='Verdana','sans-serif']Thanks for your email.[/FONT]
[FONT='Verdana','sans-serif']My understanding is that while ..... has a contract with your consultant, I do not, therefore nothing to do with me; so to reiterate, I do not have to conform to anything the HR consultant does or says and do not have to acknowledge them in anyway.[/FONT]
[FONT='Verdana','sans-serif']I have no written contract, I am advised, backs up this point, as there is no written term under contract stating I must comply with the HR consultant, and ‘they’can not insist it is an implied term. [/FONT]
[FONT='Verdana','sans-serif']I am further advised that contacting employees while on holiday or out of work hours is not correct protocol.[/FONT]
[FONT='Verdana','sans-serif']Imposing a contract of employment on an employee, added to the fact legislation has not been complied with, as I have not been given a written copy of any agreement, i.e. I haven’t agreed to anything, any such contract is null and void.[/FONT]
[FONT='Verdana','sans-serif']I realize you are right in that it is normal for a small company to outsource HR functions.It's actually quite normal in a big organisation as well, however, if the contract between you and your consultant has been in place since 2009, and this has never been given to me.

[/FONT]
[FONT='Verdana','sans-serif']Quote from Employment Law states:[/FONT]
[FONT='Verdana','sans-serif']
A contract by which a person agrees to undertake certain duties under the direction and control of the employer in return for a specified wage or salary. [/FONT]
[FONT='Verdana','sans-serif']The contract need not be in writing, but under the Employment Rights Act 1996 the employee must be given a written statement of terms of employment.[/FONT][FONT='Verdana','sans-serif'][/FONT]
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sorry about the font stuff again

[Shadowcat]

Re: suspended

Teaboy?? The font remover wizard. Are you there?