Zero-hours contract rights

[matt3942]

Re: Zero-hours contract rights

Thanks [MENTION=19071]teaboy2[/MENTION] - I'm happy to agree to disagree.

I would have agreed with you if the OP worked all of the shifts on the rota. As it is I do think it's better to keep the other guards in place and move the OP and whomever covers the Friday-Sunday shifts he doesn't work.

I'm also an employer and I can't say I'm unsympathetic with the employer in this case.

I shall look forward to reading the outcome.

- Matt

[teaboy2]

Re: Zero-hours contract rights

[MENTION=67649]matt3942[/MENTION]

Yes i agree with you there is the 1 week break at the end of the second shift and start of the next shift that may proof an obstacle to custom and practice due to break in continous employment. But then the contract doesn't say its zero hours, so it can only be a permanent contract, so the question then is would it be deemed part time shift based permanent employment! I think it would be and the 1 week break would not be deemed a break in employment as a result, where it would under a zero hour contract. So the hours he works would be implied terms of a permenant part time contract as a result of him working those shifts/hours for x years meaning they are implied hours (term) by custom and practice!

Yes i can see the predicament the employer is in. But they had the easy choice to use their contractual rights, under the other guards employment contract, that allowed them to move the other guard to another site. Or the hard choice of trying to move the OP who's contract doesn't include a term that allows them to move him to another site! When all they needed to do was take the easy option to move the other guard and that would have been the end of it and they would have confromed with their clients request to have 1 guard instead of 2 guards.

Buts yes its hit and miss and unlikely the OP will get any redundancy, but its certainly not a long shot for unfair dismissal or constructive dismissal in my option given they could have taken the easy option mentioned above and the dispute would have been resolved or not even had occurred. It could just be a simple case the employer thinks they have the same contractual term in the OP's contract as in the other guards contract!

[[iD]]

Re: Zero-hours contract rights

Thanks for your discussion guys I really do appreciate that. I can see where [MENTION=67649]matt3942[/MENTION] is coming from and guess it goes without saying that I am with [MENTION=19071]teaboy2[/MENTION] or rather, he's with me.
From what Matt is saying, it sounds like an employer can disregard the entire contract as long as they have sound business reason. I mean what's the point of having a contract then? Employer can just carry on making changes to work because there isn't a contract. From my understanding a contract is between two entities or people or in my case an employer and an employee. None of us have the right to change any terms of the contract unless the other party agrees to it, correct me if I'm wrong.

The reason they've given to singling me out is pretty simple, They said, I won't budge, I won't do overtime or cover friday, saturday, sunday night shifts. Shouldn't that be my choice? Those aren't my shifts, I will not let anyone force me to do overtime. How can someone just penalise me for not working extra shifts?
I left those shifts for a reason, left them two years ago and my supervisor at the time agreed to it. Employer had more than enough time to come up with a permanent solution to that. I personally wrote to them a year ago when we had a meeting about me not doing extra time and I offered solution to the problem and getting someone from the other site and offered to train them myself. They weren't interested in doing anything about it so they just left it like that.

Saying that, I'm not sure if I have mentioned or what difference does it make but in April last year I had this meeting with my manager who told me he wanted me to cover fri, sat, sun shifts that I stopped working. I refused as I needed at least one weekend off to spend time with my kids. He offered the site next door and asked me to pick my own 3 shifts a week there. I agreed to work there Tue, Wed and Thu nights every week (in writing). They said they'll get that done but then they forgot about it.

[matt3942]

Re: Zero-hours contract rights

Hi [MENTION=66079][iD][/MENTION] - no problem at all.

Yes, an employer can, as a last resort following unsuccessful consultation/negotiation, make unilateral changes to employees' terms. This is called the 'fire and rehire' method. Essentially an employer dismisses an employee and immediately rehires them under the new terms. It is a risky approach but it can work if the employer follows a fair procedure and has a sound business reason for doing so.

As an example, in 2011 Shropshire Council dismissed its entire workforce (6,500 employees) but offered to rehire them the following day if they accepted a 5.4% pay cut. The council argued that this move would reduce its staffing bill by Ł7m per annum and was preferable to mass redundancies.

While a contract of employment is essentially a contract between two parties, it is distinct from other types of contract. A contract of employment is based on master-servant laws - the employer commands and the employee obeys. The employee has little (if any) social power to make changes to his/her terms. This is referred to as 'inequality of bargaining power.'

- Matt

[teaboy2]

Re: Zero-hours contract rights

[MENTION=67649]matt3942[/MENTION] is correct they can fire and re-hire you under new terms following failed consultations. But those consultations must be fair and i do not believe they have been due to the alternative option that was available to them (the other guard). They seem to have singled you out in selecting you, and they would have to show the selection process was fair, in my few they wouldn't be able to too do that.

Plus you do not have to agree to being re-hired, so that would make it unfair dismissal in my view!

Basically in my view, one of the roles at your place of work on your shift is being made redundant (its the role that's made redundant not the person by the way, your just compensated for your role being made redundant). They therefore should have had consultations with both of you and used a fair selection method as to who to move, taking into consideration, length of service, experience and any contractual terms that may or may not exist that may allow them to move you to different sites, absence/performance records as well etc etc. In your case you had no term allowing them to move you without your agreement or without them sacking and rehiring you under new terms, you had the most experience and most years service (i assume). Therefore as the other guard had a term in his contract allowing him to be moved, as he had been there for shorter period of time and less experienced as you, he should have been the one selected. I believe they selected you because you refused to agree to the fixed hour contract that everyone else signed, therefore they have targeted you in order to get you on the same terms as everyone else, therefore i am of the view your being unfairly treated for standing up for your rights by not signing the fixed hour contract like the rest did - That's my thoughts on it!

[[iD]]

Re: Zero-hours contract rights

Thanks guys. I really appreciate your input

I literally have two days or rather one day to respond to their offer. As I said, ideally I'd like to get redundancy and be out of the way but in worst case scenario I'd wanna work weekend shifts at the same place till I decide what to do.
You think I should send them a letter accepting to work weekends only but under protest? Not sure if that even counts tbh.

[teaboy2]

Re: Zero-hours contract rights

I think you need to make a decision to be honest. If you don't agree to what they have offered, then chance of getting redundancy is zero pretty much, if you work under protest, then your working them is likely to be acceptance over the long term, as i doubt they'll be any going back. If you refuse and continue to turn up for work at current site, they will likely sack you. Though it would give you grounds to take tribunal action, it would be easy arguing your case, as a lot would be theoritcal, such as custom and practice argument, whether you were on permanent contract or a zero hour one etc, the latter being the easier to argue given your current contract fails to state its zero hours, but then there are no fixed hours in the contract either. Which would be when the custom and practice argument would come in to play, i.e. implied hours due to period of time you have worked those hours.

Question is, can you afford to be sacked or without redundancy pay?

[[iD]]

Re: Zero-hours contract rights

Hi and sorry for the late reply I have taken their offer to do weekend day shifts only and refused to move to a new place as I have already decided to move on and currently in process of moving on and will just be milking this current job for a couple of months.Again, I can not stress enough how much I appreciate your input and discussion as I learned a lot from it.Again, thank you very much.