Zero-hours contract rights

[[iD]]

Hi All

I've been employed for 9 years now and it seems recently received a letter from my employed about job loss.

Basically I worked same fixed shift pattern and hours for 6-7 years then I asked to change my shift pattern and reduce hours from 4.5 days/week to 3 days a week. and for last 2 years I've been on fixed roster 3 shifts a week.

I have recently received a letter from my employer that there'd be some job losses and I am expecting them to either change my days or make me redundant and was wondering what were my rights here regarding redundancy.

Do I get any redundancy pay? I read up on custom and practice and it seems like if you work on fixed hours and fixed shift pattern for over a year then according to custom and practice they become an implied term of the contract.

Just to add my contract doesn't mention anything like "The Company is under no obligation to provide work to you at any time and you are under no obligation to accept any work offered by the Company at any time."

Below is the extract from my contract where it mentions hours.

Hours of work

• Your working week will be, Monday to Sunday as roistered. The Employee will be required to work day and night shifts as instructed by the Employer in accordance with the duty roster. You may be required to work overtime if and when this to be necessary to complete your duties and you will be paid your basic hourly rate for such overtime.
• You will not get paid for any time you do not work, for instance any unauthorised days absent due to illness or otherwise.
• You agree that time on your working hours of more than an average of 48 hours per week over a 17-week period shall not apply to your employment

P.S. I was tuped transferred twice and currently with the third employer on the same contract. extract above is from my recent contract that I signed in 2011 and employment start date is from original employment that started in 2006.

Thanks in advance to anyone who can help.
Irf

[SPQR]

Re: Zero-hours contract rights

I am fairly certain that you will be entitled to statutory redundancy pay if you were made redundant (provided that you do not unreasonably reject alternative suitable employment).

You can calculate the amount of statutory redundancy pay you would be entitled to here: www.gov.uk/calculate-your-redundancy-pay

[teaboy2]

Re: Zero-hours contract rights

Agreed with SPQR

In your case, from what you have told us its irrelevant as to if your on a zero hour contract or not, as clearly you have been working set shifts for a number of years week in week out. So you would likely been deemed an "employee" as a result of customary practice, rather than a "Worker" like most on zero hour contracts are where they have breaks of a week or more with no hours of work offered.

So in your case its the duration of your continuous employment, where you worked same/similar hours week in week out, that matters here. Along with the fact that your likely to be deemed an "employee" as a result of the length of your employment and regularly working the same hours/shifts every week with no breaks of no hours/work in between.

[[iD]]

Re: Zero-hours contract rights

Sorry guys I didn't have any internet at home so couldn't check the replies. Thanks for your replies anyway.

I think I should mention my roster before proceeding. I work on rotating roster every week. Week 1 I work (Nights) Wed, Thu, (Days) Sat, Sun; and week 2 I work (Nights) Mon and Tue. These two weeks keep repeating week in week out.

Reduction in the working hours meant there are only weekend day shifts available free for me to work on.

In my first consultation they asked me to what shift pattern I'd prefer. I told them that I've already spoken to a guy in day shift and he's willing to give away one of his 5 shifts, which means I'd work Saturday, Sunday and Monday or Friday, Saturday, Sunday week in week out. They said they don't see me working every single weekend as that's the very reason why I reduced my hours in the past so I also showed my interest in redundancy because the job and pay is practically shite so yeah.

After first consultation, they spoke to the guy who was willing to give away his shifts to me and forced him to withdraw his offer as they didn't want me working weekend day shift at the place I've been for last 9 years.

Now in the second consultation they offered me work Sat, Sun at the place I'm already in and Sun to a different place than the one I've always worked. That place is literally 1.3 miles away from my current site. When asked about redundancy they told me they don't feel like they should offer any redundancy since they can still accommodate me and find me 36 hours a week.

I told them that all these changes only affected two people practically. One guy who joined the place 5-6 months ago and the other one was me who's been longest on the contract. I asked them why they cherry picked me, they said they because I wasn't flexible enough and wouldn't do extra hours (wish I had recorded that) and also because I was on zero hours contract where others weren't.

They asked me to make myself available for the training in the beginning of July and make sure I work on my new roster from the first of July.

So, the question is, how do I get them to offer me redundancy?

Again, thanks in advance for the replies

[teaboy2]

Re: Zero-hours contract rights

Can you post up a copy of your contract minus personal and employer details please. As need to see the terms and its very important we see them before i or anyone can give you advise on how to proceed. This is because of their being a full calender week break between end of your shift in week 2 and start of next shift in week 1. So if there's a term in the contract stating that work only exists when hours are provided (or to similar effect), then that weeks break would be deemed a break in continuous employment and would mean your not entitled to any redundancy pay! It would also mean custom and practice would be a no go area too.

Though its also important that we see the full contract to determine if it stands up on paper (i.e. lawful, legally binding, enforceable, fair/unfair) because if it doesn't stand up on paper in its entirety (of possibly even in part) then any term (as mentioned above reference work only exist when hours are provided) may be irrelevant and therefore mean you are an employee (due to custom and practice or by law) and not a worker on a zero hour contract!

[[iD]]

Re: Zero-hours contract rights

Hi and thank you for your reply

I think my contract doesn't say anything like employer is not obliged to give work etc but I have uploaded the contract for you to have a look. I should mention that the this contract is from before I reduced my hours to 36 a week from 54 a week. I did not sign any new contract after this one.

Link to my contract is https://www.dropbox.com/s/kqub7vzky5...essed.pdf?dl=0

[teaboy2]

Re: Zero-hours contract rights

Its says your employment was transferred in 2011 - do you have a copy of the contract with the employer whom transferred your employment over to the current employer? If so post it up, as that may well have been a permanent contract and not a zero hour one!

Looking at the current contract, it says you will be required to work Monday-Sunday as roistered - So save to say that as there is no such term i was concerned about above, then the week break between your 2nd and 1st shifts would not count as a break in employment fortunately! So i'd say your on a permanent contract!

[[iD]]

Re: Zero-hours contract rights

Thanks for your reply teaboy2. I will look for the old contract just can't find it atm.
They've written to me today offering me 12 hours work somewhere else and 24 hours at the same place.
The letter discusses my previous encounter with them (last April) where they asked me to cover the shifts I left (remember reducing to 36 hours from 54 2 years ago), whichI politely refused saying I need at least one weekend off to spend time with my family because if I agreed to do those shifts it'd mean me working every single weekend.

It also discusses the fact that company offered us fixed hour contract 2 years ago this is where they wanted to renew the contract and I raised up the issue of fixed hour contract resulting in everyone else getting the contract. I refused because the new fixed hour contract had some paycut and also because I really didn't need a written contract since as per custom and practice I already have a fixed hour contract. Also the fact that I later reduced my hours and signing a new fixed hour contract would make it difficult.

Again, the new workplace is 1.3 miles away from my current place of work and I'm not very keen on going there. I understand that it's not that far from current place of work but the fact that they practically chose me (the oldest guy there) and a new guy (who is still under probation) and not anyone else is the ground I'm fighting at, or at least trying to.

Oh and about the third shift request from me at the same workplace, I had already spoken to the guy who works that shift and he was willing to give up his Monday or Friday shift for me, he works 5 days a week and said he'd be alright working just 4. I let the manager know during my first consultation but after I left they pressurised that guy and told him to withdraw his offer or they'll move him somewhere else as they want someone who wants to do 5 days a week.

What do you guys think? Have a read a the letter and ask me if there's something you wanna clarify?

Again, thanks a bunch and I really appreciate any input from you guys.

Link to the letter: https://www.dropbox.com/s/8vpusfn4b4...ation.pdf?dl=0

[teaboy2]

Re: Zero-hours contract rights

Ok we need a copy of your original contract prior to your being transferred to the new employer!

They say your terms and conditions are not being changed but place of work is a expressed term of the contract. Once you have posted a copy of the original contract i will look in to things in more detail and advise how best to approach this in a response to their letter!

Even in the contract you posted earlier their is a term 3. Place of work - Which i assume is the site you currently provide security for?!

[[iD]]

Re: Zero-hours contract rights

Yes the recent contract has my place of work stated there. First contract that I signed 9 years ago was definitely a zero hours contract with no mention of current place of work. If I can remember correctly, it did have have a clause mentioning that there are no minimum hours guaranteed.

Ok found the contract and it says that on the first page. the other pages talk about holidays, sickness, grievance procedure, termination of employment etc
I'd attached the first page here.

Thanks a lot for taking interest.

[teaboy2]

Re: Zero-hours contract rights

Ok forget the original contract then as its no use to us. So wil have to rely on the contract you had after transfer, since that is what they are relying on.

I would respond to the letter stating that they are wrong to claim that no terms or conditions of employment are being changed as term 3 place of work (an express term of contract), is indeed being changed - No where in your contract signed on 04/05/2011 does it permit you to require myself to work at different sites on request or otherwise. Also they are wrong to state you opted out of entering a fixed hours contract, as you are and were already on permanent contract where your hours were fixed as an implied term as a result of custom and practice i.e. the fact you had worked x amount of hours or worked the same shifts for x amount of years. What they were offering as a condition of such fixed hour contract was also detrimental to you, as in signing it you would have been agreeing to a lower rate of pay per hour, which would have amounted to a variation of terms of your contract of employment to which you were not willing to agree to such change in terms on pay - Hence why you refused and did not sign the contract they offered you.

Also state that its unreasonable to state that your contract of employment has been renewed and that you have been re-engaged under a new contract - As you have not agreed to such a renewal of contract and its unlawful to unilaterally change terms of a contract without expressed written consent from yourself.

As you are, as a result of custom and practice, on a permanent contract, and as its clear that your role at your place of work is now redundant (due to the client of the company no longer requiring two security guards) and as your contract does not permit them to request of reassign you to a new place of work, and as you have not agreed to the offer of alternative role at a different site, then you are entitled to redundancy pay. It is irrelevant as to whether an employer has alternative suitable work, the fact remains you do not deem it suitable to yourself and are under no obligation to accept the alternative role that is being offered. And where said role is refused, your entitled to full redundancy pay. Just because they have offered you alternative role at a different site, it doesn't amount to a new contract unless your agree to it, and you do not agree to i, therefore no such renewal of your contract of employment that they refer to in their letter has occurred as it can not be renewed unilaterally without your express written consent, which they do not have.

Therefore they have 3 options:

1 - allow you to remain as the sole security guard on night shift on the same hours and shift as you currently perform at "enter name of place of work here" (Clients site) and relocate the other security guard instead!
2 - Make you redundant with full redundancy pay!
3 - Dismissal/termination without redundancy pay (which will be deemed unfair dismissal and tribunal action will be taken).


@matt3942 may have things to add as well!

[matt3942]

Re: Zero-hours contract rights

Thanks [MENTION=19071]teaboy2[/MENTION] - I haven't been involved with this thread at all but I will take a look it and come back to you ASAP.

- Matt

[[iD]]

Re: Zero-hours contract rights

Thanks a lot Teaboy, I could totally copy your post and send it over tbh. And thanks Matt, will wait for your input too.

Interesting, their claim that they're offering me suitable employment doesn't have a standing in the eyes of the law? What is apparent, is that they are saying that because they have offered me a suitable employment, they now don't have to offer me redundancy at all. So basically it's up to me to take the new role or leave.

If I'm being honest, I was always under the impression that employer have to find us a suitable job and if they can't, that's when they have to offer redundancy.

Again, I really appreciate your input and this is a big help.

P.S. What happens after 1st of July then? Do I stop going to work or? Because changes they're making are gonna take affect from 1st of July, leaving me very little time to weight my options. Then again, my only will is to get redundancy and get out of that place.

[matt3942]

Re: Zero-hours contract rights

@[iD] @teaboy2

TBH I'm struggling to make sense of this. Is the aim to make the employer offer a redundancy package?

If it is, I can't see how that can be achieved. It seems the employer has offered a suitable alternative.

If I've missed something please fill me in, and please try to make your points short and to the point

- Matt

[[iD]]

Re: Zero-hours contract rights

Thanks Matt

Yes the ideal end goal is redundancy.
Would you say it's fair for them picking me out and changing my place of work and shifts because I refuse to do overtime? Out of four guys they picked me out for changes and one other guy who was still on probation.
Although, I must admit that in first consultation I did show my interest for working weekend day shifts and Monday day shift, but all at my current place of work (one of the guys working weekday day shift agreed to withdraw from his Monday shift). I was told then by my manager that "He can't see me working every single weekend".