Help!!! with a unfair dismissal

**des8** · 29th September 2013, 15:17:PM

Re: Help!!! with a unfair dismissal

Hi & welcome to Legalbeagles.

Sorry to hear of your problems.
Whilst waiting for advice from more knowledgeable members would suggest you have a quick read here
https://www.gov.uk/dismissal/unfair-...tive-dismissal
http://www.acas.org.uk/index.aspx?articleid=1797
Others will be along soon

**teaboy2** · 30th September 2013, 03:57:AM

Re: Help!!! with a unfair dismissal

Has any form of disciplinary procedure taken place? Sounds to me like it was an argument and then a decision took place there and then to sack you, and that they are fobbing you off by saying that they would put your actions down to gross misconduct, when in fact, the other employees verbal aggressiveness made you leave the bar and go outside. That is not not gross misconduct at all and since they appear to have not followed any form of disciplinary procedure then they would fall flat on their noses even trying to proof it was gross misconduct.

As for the issue with wages, well it is unlawful to withhold wages under section 13 (or 12, can't remember which of top of my head) of the employments rights act 1996 - It also amounts to a breach of contract, which could give grounds for a claim in tribunal as well as a claim for unfair dismissal.

You say the original company went into liquidation but then the same management owns the current company, we suggests to me they simply liquidated the old company by name only and set up a new company name and transferred all assets to it. In this case your original contracts would have been protected by TUPE and should have been transferred to the new company name as well. Therefore they should not have issued you new contracts.

This issue overall seems rather a very complicated one, in that the employers seem to have no regards to employment rights or laws here. They probably think that a zero hour contract allows them to just dismiss you, but that is not the case. The fact you have been working 35hrs a week for, i assume, nearly 2 years (Correct me if am wrong, then your working 35 hours per week became custom and practice and therefore replaced the zero hours in your contract.

There has also been a lot of uproar recently regarding zero hour contract, which in my view are not lawful/valid contracts. As you can not contract someone to work zero ours and then ask them to come in and work 10 hours as those 10 hours would fall outside of their contracted hours. Which in normal employment cases would mean those 10 hours would be deemed as overtime (Though overtime pay/rate is discretionary and up to the employer).

My advice for you is that you contact ACAS, and explain the situation in full to them. They will then help you and may act as mediators between you and the employer. As i believe the best course of action in this cases, is not to go confrontational, but to resolve the situation amicable by mediation, as am certain once ACAS are involved and pointed out to the employer their wrong doings and what the potential consequences would be for your employer, that your employer would move the earth for you to make you happy again!

You can contact ACAS here - http://www.acas.org.uk/index.aspx?articleid=1410

By the way, it is an offence for a company to trade whilst insolvent and company directors are liable for it. You may also want to contact HMRC as i suspect their is some form of fiddling with company accounts going on here, as i see no reason as to why they would choose to pay bar staff at end of shift, other than to put it down as petty cash to lower the wage bill and taxes they pay on said wages, not to mention the fact it appear as an expense and therefore come out of their profit margin, meaning less corporation tax to pay etc. If they were paying cash in hand and not paying your income tax and NI out of your wages, then it is unlawful. So the fact they were paying bar staff end of each shift, says to me they were not paying the NI and income taxes form the bar staffs wages.

**nrsjbor** · 2nd October 2013, 16:06:PM

Re: Help!!! with a unfair dismissal

update

i was called into a meeting today which i had arranged to talk about the outstanding wages i recorded the meeting on my phone i took in a witness aswell the first thing my employer informs me is that this meeting is an interview leading to the investigation and that i am now suspended he said i had never been sacked only suspended and when i told him that he never told me i was suspended and when i asked do i have job there then he said no and also that when i confronted him on the phone at the weekend and informed of legal action he said he was going for gross misconduct he then said on tape that he retracting that and that i am now suspended without pay. i am on zero hour contract so wasnt expecting to be paid.

i had contacted acas who told me write grievance and appeal against dismissal which i did but because my employer now says im oly suspended that when i gave him the letter he was trying to say that i was handing my notice in. so i retracted the lettler

have some questions i need answers to if anyone can help

1. i know on a zero hour contract can mean no hours. however my question is my company does weekly rotas and if i am rota'd in can i be taken off the roat and replaced or not? as i been informed by a friend if your on a zero hour contract and get given a rota the hours on there become your contracted hours for that week. as when i was sacked on friday they got someone to cover my sat & sun shift as my boss seems to think he can chop and change rota when he feels like

2. in my incidient my manager was a witness at the bar at the time and he is also leading the investigation. is this right should he be able to run investigation when he was a witness and i have been told by him that he will not undermine the other person in question as they are business partners

3. minutes were taken during interview by an unbiased person however i never read the minutes nor did i sign them is this incorrect procedure as i been told it is by a friend want to get facts stright.

**teaboy2** · 2nd October 2013, 16:48:PM

Re: Help!!! with a unfair dismissal

First of all he can not dismiss you and then retract it and say your suspended just because he realised he messed up big time. Law of Estoppel prevents him from doings so. Once your told your dismissed, thats it, contract terminated, and said contract or employee (you in this case) can not be reinstated with out your written consent to reinstating the contract or reinstating you as an employee.

A letter of grievance is not under any circumstances a Notice of intent to terminate your employment - Was the letter headed "Letter of Grievance" and can you post it up here minus yours personal details and that of the employer.

As for your three questions see the answers to each below:

Simple answer is NO he can not, at least not without giving 1 weeks notice. So yes they would be your contracted hours for that week. But as i said before a zero hour contract is in my view unlawful and invalid. What where your hours in the original contract prior to the new company issuing you new contracts in breach of TUPE? I ask, because the original contract would may still be valid and therefore may still be your contract, not the one they replaced it with! Do you have copies of both your original contract and the new contract, and can you email copies them to me if i PM you my email address?
No its not right, the investigator is required to be impartial, therefore can not be a witness to the alleged incident or a party to it. Therefore Dismissal would be automatically unfair if he investigates and partakes in the meetings and hearings.
You may request a copy of the minutes, and upon doing so the employer MUST provide you a copy, its is advisable an employee is permitted to read said minutes at the end of the minute prior to signing it. That way they may dispute anything in the minutes that they do not agree with or that was not stated. The fact you didn't sign it works in your favour as its evidence you were not shown them. Either way the employer must provide you a copy on your request, so i suggest you request a copy now.

I also recommend once you have posted up a copy of your grievance letter and got our OK to give it to your Employer, that you do so - Regardless of what he says.

End of the day your employer is knee deep in the shit right now, the way you have been treated and the way he is now trying to worm his way out of this mess by telling you he didn't dismiss you but suspended you, when he had clearly said that you had no job at the time when you asked is disgusting.

Also when you get the chance, contact ACAS again and update them on what you have just told us and what i have also said about it.

Did you contact HMRC by the way?

And just so you know, and i do not recommend you tell your employer this (That way we can keep on giving him enough rope to hang himself with). But i am that disgusted at the way this employer has treated you and no doubt the rest of the employees there, that i going to help you give this guy the biggest crises and financial nightmare off his life!!

**nrsjbor** · 2nd October 2013, 20:25:PM

Re: Help!!! with a unfair dismissal

[link removed] is the link for the meeting recording

did not contact hmrc as boss said all national insurance will be paid as well as tax that staff will have to sign for their wages.

my letter of grievance that i retracted because it says at the end about my p45 which is where my boss was saying i am handing in my notice

Dear L

Grievance(s) and appeal against dismissal/disciplinary action

In accordance with the Employment Act 2002 (Dispute Resolution) Regulations 2004, I am writing to you with regard to the following:
I wish to appeal against my dismissal. I do not believe that my dismissal was justified and I believe that I have been treated unfairly because:
Friday 27 September 2013 i started my shift at 17.00, i was due to stay on till close (approximately 01.00) we had a Physic Event on with 140 people turning up as well as our normal Friday evening trade. Lenny anadrou was on sight and helping out when Russell turned up later in the evening unsure on what time he was drinking with one of the patrons of the bar, name unknown. No issue at beginning of shift we spoke briefly, the bar started getting busy at about 1845hrs ladies turning up for the event we was able to carry effectively. However at 2045hrs it was the interval of the show and bar was busy with people wanting food and drink. To save time i was taking 3 orders at a time i was told as i was told to take food orders before kitchen closes at 2100hrs during working out these orders Russell is behind the bar now taking another order and asks me
"How much is a double vodka and coke"
"I don't know" i replied
"Who would ****ing know" Russell said in a derogative tone
"Its on the till"
"I don't ****ing know how to use the ****ing thing" this time in more aggressive and derogative tone to which i didn't reply.
Instead i walked to the till where Lenny was finishing off a transaction where Russell walks up to him and starts to have ago about me saying i should be lucky i have a job, if it was not him i wouldn't be here, he doesn't like my attitude still speaking in a derogative manner to which i spoke up and said that he needs to learn the till but before i can finish my sentence he was walked off back to customer if he had stayed to let me finish he would have heard me say "you need to learn the till as you are only slowing us up because you cant process the order." but he had gone mid sentence when he returned with the customers money i was finishing off processing my transactions when he throws the customers money at me in front of a full bar. I felt insulted and humiliated at first then felt anger so i walked away from the bar saying "i cant do this." Needing to get some air and calm down. As I'm walking away Russell turns and says "Don't bother ****ing coming back we don't ****ing need you"

I did not go home i was out on the balcony where i can hear Russell shouting and swearing in the kitchen, it was not till about 15mins when a colleague comes out and says that i have been taken off all rotas that i was assigned to that Russell does not want people with attitude problems.

I would like to point out at this time that Russell had been drinking before this incident.

I would also like to point out at this point that since working at dickens world i have never had a written or verbal warning regarding any of my conduct at work and if you was to ask any of the other managers and staff that i have worked with would say how calm and pleasant i am to work with.

Given that my employment was terminated without notice, I should have been paid notice pay, which is the higher of the statutory notice of one week’s pay set out in s.86 of the Employment Rights Act 1996, or any contractual notice period. I therefore request that I am paid this immediately as well as the wages owed to me for the dates 18 august 2013 to 27 September 2013, plus outstanding holiday pay owed.
Furthermore, I would like to raise grievances with regard to the following:
bI have not received a pay statement in accordance with s.8 of the Employment Rights Act 1996 which should have been sent to me on or before my payment date of 30/09/2013. I therefore request that you send me my outstanding pay statement immediately, along with my outstanding P45.
I understand that you will arrange an appeal meeting with me to discuss all these points. I am entitled, if I wish, to be accompanied by another work colleague or my trade union representative.
Please reply no later than 7 days of the date of this letter.
Yours sincerely
Nicky Ross

Signed …………………………………….

i would love to know what i should be doing with them next as i dont want to roll over for them to say i had done nothing wrong and then for them to zero hour me the following week/month

my contract had no changes as i was on a zero contract to start with
i have recieved my pay slip on date of meeting

**Amethyst** · 2nd October 2013, 20:47:PM

Re: Help!!! with a unfair dismissal

I've removed the link to the meeting recording - I don't think it's wise to post it on the public forum. Also I would suggest anonymising your other post (I did the first one the other day) as your employers will be able to find and read this thread quite easily if you continue mentioning full names and the company name.

Thanks.

**CleverClogs** · 2nd October 2013, 21:21:PM

Re: Help!!! with a unfair dismissal

It seems to me that [the alleged employer] has a curiously dickensian view of workers' rights.

**CleverClogs** · 2nd October 2013, 21:38:PM

Re: Help!!! with a unfair dismissal

Originally posted by nrsjbor View Post

[link removed] is the link for the meeting recording

I saved the file and have forwarded the link (by email) to teaboy2.

**teaboy2** · 3rd October 2013, 04:10:AM

Re: Help!!! with a unfair dismissal

Thanks for saving the recording and emailing me the Link Clever - It was certainly enjoyable to listen to in terms of how nrsjbor employers were clearly digging themselves a much bigger hole.

@Nrsjbor.

In regards to the grievance letter, at the time you wrote there was nothing wrong with it as they did dismiss you and they did confirm that they had and then said you were no longer dismissed on the tape you provided, the fact L clearly stated he knew you were recording and didn't mind is a good thing too. No wwhat you need to do, as you will need to do this anyway if it goes to tribunal, is put what is on the recording in to a written transcript and format it as

L Says 1min 38 sec "Blah Blah Blah"

You will need to do this for the whole recording to make sure you have everything that is said in the record on paper - as you will need this for the tribunal if we go down that route - Yes i know its a lot of work and will take up best part of a day to do. But it will be worth it in the event we go down the tribunal route. Also email a copy of the recording to ACAS as well.

Now back to the Grievance Letter - You need to write a new version taking into account what was said about your dismissal in the investigation hearing, how the meeting was biased as L was a witness to the event, and said investigations and attached meetings should be held by an independent person not involved in the event itself so the investigation remains unbiased and independent from the actual event and persons involved. Also get copies of those emails the customers send in, and copies of statements given by other staff members - You are entitled to these.

Another good point is that they admit to not allowing you to attend a staff meeting and that they unilaterally made a decision as to how they would pay you and when during that meeting that you were not permitted to attend and at the same time admitted to witholding a percentage of monies owed in September and were paying 25% of that this month if i heard it correctly. Can you please give us a details description as to what has been going on with your pay and as to whether you agreed to them withholding any percentage of pay, that would have otherwise been paid normally on any previous months.

Am going to have to listen to the recording again, to make sure i have picked up on everything and that i haven't missed anything either especially since it was like 3:30am in the morning and i was still halve a sleep so my brain was only working at 50% its normal capacity at the time i was listening to the recording, if you know what i mean.

Now i need to ask you something and this question is a very important one - You said in your original post that you managed to maintain a 35 hour week per week, has this been every week consecutively and if so since when (i.e month and year)? Also has there been any weeks since then when you wee not given work?

If your answer to the above is what i think it will be, then boy does that make your case a whole lot stronger, as it would be bye bye zero hour contract, hello fixed term 35hour week contract lol (that's also a hint to everyone following the thread to see if they know where am going with this!).

Though its VERY VERY important that you answer the above question 100% honestly, not that am suggesting you would lie as you have no reason or need too. But it is very important you give me an honest and accurate answer to the above and not an answer that what you would like the answer to be where its not actually the reality of the matter.

Also zero hour contracts mean an employer can give you hours at any time, once they offer you those hours and you accept them they have entered a verbal contract with you to give you those hours, they can not rescind those hours without your mutual consent or when their is a case of misconduct on your part (if what they said was true, then you would also be able to leave work at any time without notice (i.e. "Right i can't be arsed to do anymore hours today, am off home" kind of thing - It works both ways!) - Which in this case, you were the victim. I love how they are treating your response (walking outside to avoid confrontation with an aggressive staff member / company director) to incident as gross misconduct, which i can tell you now, in no way whatsoever does it amount to gross misconduct, or even misconduct of any kind on your part.

Now i may have asked for this yesterday, but can't remember if i did or not, and haven't time to go reading through my previous post just yet as i need to get ready for today. Can you post up a copy of your contract minus personal details and company details? If not are you able to email a copy to me if i PM you my email address? NOTE TO SITE TEAM - i shall remove personal and company details and post the Contract up on OP's behalf. Wouldn't want to be accused of anything (oh i miss Elouise, what fun i had with her...NOT lol).

Oh - One more question - They referred to HR, yet to me it sounds like a small company based in one Property, so who is HR, whats their position in the company are they connected to the directors (relatives etc) and how many people are in the HR department, is they even a HR department or just one person that deals with HR matters?

Also clever is spot on in my opinion in regards to your employers views on their employees/workers rights - Your a worker under a zero hour contract by the way not an employee, though under a fixed term contract you are an employee.

**charitynjw** · 3rd October 2013, 04:51:AM

Re: Help!!! with a unfair dismissal

Re post #6

The Employment Act 2002 (Dispute Resolution) Regulations 2004 has been repealed in it's entirety (nearly*), & has been replaced by the Employment Act 2008.

*See Teaboy's post #12

**teaboy2** · 3rd October 2013, 05:10:AM

Re: Help!!! with a unfair dismissal

Not 100% true there Charity "In the Employment Act 2002 (c. 22), sections 29 to 33 and Schedules 2 to 4 (which make provision for statutory dispute resolution procedures) are repealed." - http://www.legislation.gov.uk/ukpga/...ute-resolution

Though you are right the 2008 act removes statutory procedure, but they still have to comply with procedure set out by ACAS for example - so there isn't any real momentous change to what the procedures were/are. Though i disagree with the repealing to the sections in the 2002 act

A lot on the tape actually Beggars believe to the point its that pathetic in terms of employment laws etc, that its amusing to listen to, in regards to knowing they are so out of their depth and just digging deeper and deeper. I'm now of the mindset, where its to hell with giving them the rope to hang themselves on, as they themselves are at the point where its literally them digging their own graves in readiness, albeit unknowingly to them lol.

**charitynjw** · 3rd October 2013, 05:41:AM

Re: Help!!! with a unfair dismissal

How very dare you! - you didn't read my post correctly is all! :whistle:

Thanks, Teaboy, I've edited it accordingly.

**nrsjbor** · 3rd October 2013, 07:32:AM

Re: Help!!! with a unfair dismissal

well thank you to all have answered me so far i appreciate everything you all say you so much for help and advice.
so far so i been doing between 30 -35 hours a week since February before that i was getting 16-20 hours week i cant say when that started exactly and i know what point your trying to make, if i had been working for 16 hours a week for a a year and a day then new contract would need to be placed i found this out by a college yesterday. the problem is that the rota always changes and the hour fluctuate one week week i may only 30 hours and next 40 so when i say 35 hours it an average figure i have not had a week with zero hours apart from this week, since 2011. will have to wait i will need to scan my contract on to my computer im sorry i dont have a copy of my old one.

hr was a seperate company they brought in to deal with redundancy when company took over by new company name i can get detail of hr if needed

**teaboy2** · 3rd October 2013, 08:22:AM

Re: Help!!! with a unfair dismissal

But the point is they were employing you to work more each week up to 30hrs per week for a long period of time. So in effect they are abusively using zero hour contracts to employ what otherwise would be a part/full time employee on a part/full time contract. If all staff are on this zero contracts then that is the proof of such abusive use of said contracts.

Zero hour contracts are only to be used where you need to cover staff at short notice as and when the business needs, they are not meant to be used to employ staff of a regular basis. Proof they are doing this is by the fact they give you hours by rota and if all staff are on same contract. A tribunal would take in to account whether zero hour contracts were the appropriate contract in this case. In my view it is now as you had regular hours, though not fixed - therefore as it was customary for you to have regular hours then in my view your zero hour contract developed into a part time or a full time contract on the basis you were working part time / full time. What your college said is not 100% true in regards needing a new contract after a year and 1 day,where zero hour contracts are involved, and in any case if you worked 16+ hour per week each week then it would be come a part/full time contract anyway. So as you have worked 16+ hours per week since as far back as you can remember, though i assume since December 2010

So HR is basically a desk jockey that think he/she knows it all, speaks down their nose at you idiot of an HR Consultant that in most case, were i have come across them, actually know F all lol. Evidence of which is the companies failure to provide you a written statement informing you that disciplinary proceedings have commenced and that you are suspend, whilst also inviting you to attend the investigatory meeting. Phoning you (which i assume is what happened) is not sufficient, as they should give you a reason notice period as to when the investigatory hearing is to be held. Same applies to giving you reasonable notice to attend the Disciplinary Hearing, which is what he was referring to when he said this time next week they will have another meeting with you.

For the record where i have referred to fix term contract i was actually referring to part time and/or full time contracts, for some reason i have been calling it fixed term when obviously its not fixed term. Need to give my head a little shake i think lol

End of the day zero hour contracts are meant for Piece Work or on-call work, not for working regular hours as per entered in a weekly rota. Hence why i do not agree with zero hour contract other for those two purposes.

Help!!! with a unfair dismissal

Help!!! with a unfair dismissal

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