Zero-hours contract rights

[teaboy2]

Re: Zero-hours contract rights

[MENTION=67649]matt3942[/MENTION]

Well the employer hasn't offered redundancy at all, they are basically trying to force the OP to change his contracted hours/shift and place of work, which is a variation of terms of contract. His hours are implied by custom and practice! place of work is an expressed term in his contract!

So the offer of alternative isn't an offer but a demand i.e do or dismissed!

Ideally i want to save the OP's job and keep the status Quo but the OP is in favour of redundancy which they say hes not entitled to for reason in thir letter to him, which make no sense! as hes not renewed or agreed a new contract with his Employers

[matt3942]

Re: Zero-hours contract rights

Hmm... I suspect you won't like my response.

It seems to me that you've been affected (as opposed to your colleagues) because the client (at whose site you work) has reduced the number of hours available. I can't see how you've been singled out or treated unfairly. Again, if I've overlooked something please let me know.

I think the crux of the matter will be whether the alternative offer is reasonable or not.

Your argument is that it isn't reasonable because:

• working hours have become an implied term by custom and practice; and
• location of work is an express term.

The employer is going to argue that it is reasonable because:

• custom and practice does not apply here because the OP is aware that the hours are determined by the employer's clients and so it is not reasonable to presume these hours will always be available;
• even if the working hours had become an implied term, there is a sound business reason for varying this term (i.e. the client reducing the hours available) to avoid redundancy; and
• as above, there is a sound business reason for varying the express term as regards location of work.

IMO the employer has the better argument.

- Matt

[teaboy2]

Re: Zero-hours contract rights

I see your point and if there was no other security guard who could be moved then i would agree completely - Plus there's other issued involved.

You see the other guards are on different contracts as they all signed fixed term contracts. There is no reason why the other guard can not be asked to move to a new site or change shift, as its unlikely they have place of work as an expressed term (probably why the employer doesn't believe they are changing any terms of OP's contract, when in fact they are) and their contract terms may likely allow for employer to request they work at another site. Where as the OP's doesn't have any such term.

Its a tough one as the OP favors redundancy, where really we can only aim for keeping him at present site and moving the other guard, whilst leaving the option for redundancy open. There's also the issue of them saying he agreed to a renewed contract, which he hasn't, and using that as part of their reasoning for not being willing to pay redundancy.

He did agree to work 2 x day shifts at current site and they agreed to allow him to do 2 x day shifts but not a third shift as requested by the OP (so no agreement had been reached), meaning he would not get the same hours as a result of being refused a 3rd shift. Which would breach the implied fix term hours under custom and practice. But another guard had agreed to give up some hours to accommodate what the OP wanted, but then according to OP, the other guard was pressured out of it by the employer once this alternative resolution was brought to the employers attention!

[matt3942]

Re: Zero-hours contract rights

Thanks [MENTION=19071]teaboy2[/MENTION] - I appreciate where you're coming from but I think in spite of everything I think the employer has good grounds to argue that the alternative offer is suitable and reasonable.

The employer isn't obligated to move other employees to accommodate the OP, and in fairness why should they? The reason this issue exists, and affects only the OP, is because the client (at whose site the OP worked) has decided to reduce/withdraw the available hours.

I can see the employer has stated there is no change to the terms of employment, which of course there is; however, where the employer refers to renewing the contract, I suspect it means the OP has been re-engaged under the new terms, i.e. change in work location and work days/hours. IMO there is a sound business reason to vary the terms of the OP's contract.

I think the OP needs to rule out any offer of redundancy as the employer has stated this is not an option. If the OP wishes to press on, he could resign and claim constructive dismissal, or work under protest and bring a claim for unfair dismissal under the old contract (or indeed both options). TBH I am rather dubious about the prospect of success in either of these claims.

Personally, I would keep my job and work under the new terms, or if I was determined to leave, simply resign and move on.

- Matt

[teaboy2]

Re: Zero-hours contract rights

@matt3942

The thing is matt, they can not unilaterally change the terms of the contract without the expressed consent of the OP, that's regardless of the business reasons, if the OP doesn't accept the change i.e. place of work! They can not simply renew or re-engage an employee on a new contract without the employees agreement as contract law simply does not allow for it! So it would be unfair dismissal or constructive dismissal as you say, but the difficulty lies with the fact the hours are implied by custom and practice, meaning that would have to be proven at a tribunal and agreed by the tribunal - And its the change in hours and shift the the OP is more concerned about, hence my intentions to try help him keep his job as per status quo.

Usually in security employment the contract has a clause that allows the employer to request the employee to work at other sites if required or if no work is available at normal site. Now they do have a second guard, that works with the OP on current shifts, the client is wanting to change this to just one guard, now given the second guard has a more recent written contract, am assuming it includes a term allowing the employer to request he moves to another site, where as the OP's contract has no such term. So asking the other guard to move sites is likely the more contractually feasible way to make the changes the client has requested, compared to asking the OP who is not contracted to work anywhere else on request and contracted solely to work at current site! This is something a tribunal would also look at, and if am right and the other guard does have such a clause in their contract, then the employer can not rely on what they claim as reasonable grounds as the reasonable option to resolve this would have been to move the other guard as per their contracted permitted the employer to do so, where as the OP's contract does not!

The OP was actually offered the chance to sign the same contract as the other Guard, so it may be helpful actually if @[iD] could post up a copy of the fixed hour contract he was offered but refused to sign.

[[iD]]

Re: Zero-hours contract rights

I can confirm that the other employees who signed new fixed hour contract 2 years ago have their normal place of work expressed in their new contract but it also says that they might be required to work anywhere else. Which in my opinion makes it easier for employer to move other people instead of me as there will be no breach of contract but going all out and singling me out doesn't seem fair. Yes, there's loss of hours but why does it have to affect just me. Why not the other guys who work 54 hours a week.

Matt, Could you guys kindly shed some light on what they mean when they said "Your contract of employment has been renewed, and you have been re-engaged under new contract of employment"?? It's confusing the heck outta me. Could they just re-engage me under new terms without me agreeing to it? Don't I have to sign a new contract for that or at least have that clause in my contract that allows them to renew my terms of employment at will?

I can upload contract that other guys have signed if it helps, I have a copy of the same contract which I refused to sign. I have attached a photo of the part of other peoples contract where place of work is mentioned.

[matt3942]

Re: Zero-hours contract rights

Hi [MENTION=19071]teaboy2[/MENTION]

Where consultation hasn't resulted in an agreement employers absolutely can make unilateral changes to employees terms where there are sound business reasons.

Again, I don't accept that the working hours have become an implied term and it's highly unlikely an ET would either. However, even it had become an implied term, the employer can amend it (as above).

I do apologise as I didn't realise the other guard was working at the same site (and presumably is continuing to work at that site?). However, the rest of your argument hinges on 'usually' and 'assuming', which doesnt really help us.

If we can see the new contract, which other employees are working under, it would be helpful.

- Matt

[[iD]]

Re: Zero-hours contract rights

Thanks Matt, I'll upload that right now. just need to figure out how to make pdf out of it lol

[[iD]]

Re: Zero-hours contract rights

Here's a copy of new contract that everyone else signed but I refused.
https://www.dropbox.com/s/efdb12xapi...tract.pdf?dl=0

[matt3942]

Re: Zero-hours contract rights

Thanks [MENTION=66079][iD][/MENTION] - I can see there is a flexibility clause in this contract in relation to location of work.

Can you just confirm for me - how many guards work(ed) at your site?

- Matt

[[iD]]

Re: Zero-hours contract rights

Thanks [MENTION=67649]matt3942[/MENTION] and @teaboy2

We have total of 6 guards
2 work week days day shifts
and 4 work nights and the weekends (in a pair of two).

The proposal from client is to reduce to number of guards in the nights to 1.
The roster work(ed) the following way.

Team1: Weekdays days Mon-Fri
Team2: Mon(N), Tue(N), Fri(N), Sat(N), Sun(N)...Tue(N), Wed(N), Sat(D), Sun(D)
Team3: Tue(N), Wed(N), Sat(D), Sun(D)...Mon(N), Tue(N), Fri(N), Sat(N), Sun(N)

N is for nights and D for Dayshift. Again, I stopped doing those friday, saturday and sunday night shifts 2 years ago so they were getting cover guards to cover it.


-------------------------------------------

Proposed shift pattern:
Weekdays dayshift to remain the same.
All the night shifts to have one guard only. They decided to achieve that by splitting the other night team and basically having them work on the old roster mentioned above but as lone worker. Leaving weekend day shifts where they still required 2 guards. So they offered me to do those 2 shifts. As for the other guy in my team, he's on probation so probably will be let do

[matt3942]

Re: Zero-hours contract rights

Thanks [MENTION=66079][iD][/MENTION]

I think I understand - the other two guards will cover all of the night shifts with only one working at a time. If the employer moved one of those guards and kept you, they would still need additional guards to cover the Friday, Saturday and Sunday shifts, which you don't work.

TBH - assuming I've understood correctly - it does seem like less hassle (and not unreasonable) to move you to another site.

Your argument hinges on the express term in your contract about location of work, and whether your employer has been fair in varying this term. I would say yes, [MENTION=19071]teaboy2[/MENTION] will probably disagree.

If you don't agree to work under the new terms I suspect you will ultimately be dismissed, in which case you can appeal and later bring apply to bring a claim to an Employment Tribunal for breach of contract and unfair dismissal. I would say your chances of bringing a successful claim are fairly low. Again, [MENTION=19071]teaboy2[/MENTION] may disagree.

Whatever you decide to do, consider seeking professional advice before doing it.

- Matt

[teaboy2]

Re: Zero-hours contract rights

@matt3942

Matt the contract the OP had originally was zero hours prior to TUPE - The one he is on now is doesn't state hours, but also doesn't state its a zero hour contract either - However hes been working the same shifts and hours for well over 2 years, making them implied terms of his contract. His contract is now a full time permanent employment contract and his hours are implied terms of that contract due to custom and practice. Whilst it makes any claim more complicated, it is by far from impossible to persuade a tribunal that the amount of time hes spend work these same hours/shifts amount to OP being an "employee" and on a permanent contract of employment with implied hours due to custom and practice - The fact they even include disciplinary procedures as a term in his contract makes it clear they deem him an employee and not a worker as so which supports the argument he is on a full time contract - Also the fact his contract whilst fails to state number of hours, also fails to state that it is a "zero hour contract" is in the OP's favor too.

Regarding the other guards contract and the term allowing the employer to move the other guard to another site either permanently or on temporary basis. Well that kills it, as regardless as to having sound business reasons, the fact is they have no contractual right to force OP to a new site under his contract, and the fact they have the contractual right to do just that to the other guard, but are clearly ignoring this. Says to me they have singled OP out, likely because of his refusal to sign the new fixed hour contract when offered. Either that or they're assuming he has the same term in his contract, when he clearly does not. Either way, if they try forcing him its a breach of his contract, regardless of whether they have sound business reason, as a result of the fact they could easily move the other guard whom they have the contractual right to move to another site!

Consultations most be fair, and so most the selection process, it is unfair to pick out the OP when at the end of the day they didn't even need to hold a consultation period as they could have simply told the other guy he is now expected to work at another site as per there right under the other guys contract. What they are doing is frustration of the OP's contract. They are using the consultation process to try and force the OP in to a new contract against his wishes so he'd be on the same terms as everyone else by saying his contract most be set aside due to unforeseen (client request to reduce number of guards) event that renders the party's obligations impossible, or has radically changed the party's principal purpose of entering into the contract - Neither of which is the case, due to the contractual right the employer has over the other guard to move the other guard to another site!

[matt3942]

Re: Zero-hours contract rights

[MENTION=19071]teaboy2[/MENTION]

Deciding whether custom and practice exists is usually left to an ET judge because it's a very complicated area. Terms don't automatically become implied by custom and practice after a defined period of time - they have to be certain, reasonable and notorious, which they don't seem to be here. As such I think it's highly unlikely an ET would consider an implied term exists in this case.

An ET might find the OP to be an employee (as opposed to a zero-hour worker) but IMO that doesn't change anything. IMO the employer has sound economical and organisational reasons for selecting the OP, and for varying the terms of this contract.

Frankly, I would accept the new terms but if the OP wants to leave, I advise him to leave and work elsewhere. If he wants redundancy, I suspect he'll be left wanting.

Unless there's any additional information I have to stand by what I've said already.

- Matt

[teaboy2]

Re: Zero-hours contract rights

Well i think i shall just agree to disagree with you matt.

I would have agreed with you if it had not been for the other guard's contractual terms - As a tribunal would be asking, well if they had that contractual right to move the other gaurd, the why did they not opt to enforce that term and move the other guard instead of trying to force a new contract and a change of place of work on the OP who was on a different contract where the employer had no contractual right or term to allow them to request he moves to a different site and change his hours of work that he's been working for x years?! Its unreasonable and unfair behavior as regards to how to resolve the issue the employer faces in light of the clients request, the obvious route would be to enforce the term under the other guards contract and move the other guard to the other site, leaving the OP at current site on current hours/shift and therefore preventing this dispute! Regardless of having what could be considered sound business reason, their approach was not reasonable of fair in their actions against the OP, where it would have been reasonable and fair if they had asked the other guard to move sites and hours/shifts.

Basically why are they targeting the OP when they could just simply ask the other guard to move to the new site as per permitted to do under the other guards contract and therefore avoiding this whole dispute - It seems to me they have deliberately targeted the OP (fact they forced an other employee to withdraw is offer of giving OP some of his hours, supports this). As end of the day, the obvious solution to the employers problem of meeting the clients request would be to enforce the term under the other guards contract that allows them to move the other guard to the other site, leaving the OP as the single guard and therefore meeting the clients request. Is the employer reasonable in their actions? No clearly not as they have a clear alternative to meeting the clients request that if followed would have prevented this whole dispute occurring.

As an employer myself, i know what action i would take, and it would not be what this employer is doing. As their action is unfair and unreasonable enlight of the option they have with the other guard in meeting the clients request!