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Breach Of Contract ?

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  • Breach Of Contract ?

    Looking for a bit of advice to impart to a person in need in regard as to whether his employer is breaking UK employment laws by his actions.

    The person in question works as a handyman at the Care Home where my wife works. Last week, on receiving his payslip, he also received a letter telling him that ' his performance has been unsatisfactory and as such, they have been forced to employ a second handyman to assist him'.

    As if that is not insulting enough, his employers have decided to deduct £250 from his wages to pay for this second handyman. That £250 will continue to be deducted from his future wages to continue paying for the second handyman.

    In my view, this action is highly questionable, both morally and legally. The person concerned has never been previously warned about his performance, so to suddenly do this to him must surely be illegal.

    If his employer has concerns over his work, then surely they first have to inform him of such. Even then, I seriously doubt they have the right to deduct the wages for a second handyman from his wages in the first place.

    I know this person is going to see CAB sometime this week, but I was wondering if anyone has any links to relevant legislation on employment law that I can pass onto him. I think the behaviour of his employer is reprehensible in what he is doing and I want to be able to make that employer think twice before trying that kind of behaviour again - especially if (as I suspect) his actions are illegal.

    After all, if he can do this to one person, then it surely will only be a matter of time before he begins to persecute other members of staff (including my wife) in this manner in the future.

    I simply want to show this guy that employment law in this country does not tolerate such deplorable actions and demonstrate that the common man can be very well informed in such matters and indeed can fight back.

    Thanks in advance for reading and for any help that anyone may be able to offer.

  • #2
    Re: Breach Of Contract ?

    Yes lots of rules against unilateral changes to terms of employment and reduction in pay without consultation and agreement. Breach of Contract can be argued through the civil court (where you can get an injunction against the changes in terms) or Constructive Dismissal through a tribunal (employee finds position untenable as result of changes and is thus unable to continue in the position is thus constructively dismissed).

    I think employers have to give employees at least a months notice (or could be a pay period) of any changes.

    Also issues of accusations of misconduct and changes of terms due to misconduct without any prior notification or discussion. There are procedures they have to go through there as well.

    Will look up the right bits for you.

    ALSO point him to ACAS - '' Call our helpline 08457 47 47 47 or visit our website Acas - Home. ''

    edit- here - from acas website - http://www.acas.org.uk/CHttpHandler.ashx?id=316 pages 5 and 6
    What happens when an employer varies a contract without
    the agreement of the employee?
    • If an employer imposes changes in contractual terms without the
    agreement of the employee, there will be a breach of contract.
    What could an employee do in these circumstances?
    • The employee can accept the breach and continue to work under the
    amended contract. Where an employee continues to work under revised
    terms without objection, then in due course he or she may be regarded
    as having agreed to the changes.
    • Where an imposed change involves a significant change to the contract,
    eg: a reduction in pay or alteration of working hours, an employer may
    well be acting in fundamental breach of contract. Where there is a
    fundamental breach, the employee may treat the breach as bringing the
    contract to an end and leave the job. In such circumstances and subject
    to having the necessary qualifying service, the employee will have the
    opportunity to make a claim of constructive dismissal before an
    employment tribunal. In coming to a decision the tribunal will take into
    account whether the employer acted reasonably in all the circumstances
    of the case.
    • Alternatively, the employee may continue to work within the varied
    contract but under protest, making it clear that he or she does not accept
    the terms and is treating the change as a breach of contract
    and dismissal from the original contract. In these circumstances the
    employee will retain the right to seek damages from the employer for
    a breach of contract and/or a declaration from the courts that the
    employer must abide by the original terms. Subject to having the
    necessary qualifying service, the employee may also have the opportunity
    to make a claim for unfair dismissal before a tribunal.
    The tribunal, in the first instance, will have to decide whether the new
    terms are so substantially different as to be an entirely new contract
    and not a variation of the old one.
    • Whether or not the breach is a fundamental one, the employee may sue
    for damages for breach of contract in the civil courts; or if the employment
    has terminated, the claim can be made to an employment tribunal, which
    can award damages limited to a maximum of £25,000.
    Last edited by Amethyst; 1st November 2009, 17:59:PM.
    #staysafestayhome

    Any support I provide is offered without liability, if you are unsure please seek professional legal guidance.

    Received a Court Claim? Read >>>>> First Steps

    Comment


    • #3
      Re: Breach Of Contract ?

      Acas - Code of Practice 1 - Disciplinary and Grievance Procedures

      might help too


      I'd give ACAS a buzz before seeing CAB.
      #staysafestayhome

      Any support I provide is offered without liability, if you are unsure please seek professional legal guidance.

      Received a Court Claim? Read >>>>> First Steps

      Comment


      • #4
        Re: Breach Of Contract ?

        Thanks Ame.

        Even from reading the reference material you have pointed me to, it would seem that the employer is breaking several employment laws in his behaviour.

        Unfortunately, my pigging printer has decided to run out of ink so I can't print the ACAS document out at the moment. However, I've saved a copy to my PC and I suppose I will have to make a trip to Cartridge World tomorrow !!

        Comment


        • #5
          Re: Breach Of Contract ?

          I agree with Amethyst - contact ACAS, & look on ACAS website.

          Don't 'agree' to the situation - if he does nothing, this could be taken as an acceptance.

          Read ACAS info & especially grievance procedure CoP (new one 6/4/09).

          If situation becomes untenable, possible constructive dismissal (repudiatory breach of implied terms of trust).

          Get everything in writing
          (emails are nice & easy & good paper trail).

          cnjw
          CAVEAT LECTOR

          This is only my opinion - "Opinions are made to be changed --or how is truth to be got at?" (Byron)

          You and I do not see things as they are. We see things as we are.
          Cohen, Herb


          There is danger when a man throws his tongue into high gear before he
          gets his brain a-going.
          Phelps, C. C.


          "They couldn't hit an elephant at this distance!"
          The last words of John Sedgwick

          Comment


          • #6
            Re: Breach Of Contract ?

            Have been to Cartridge World this morning and have now printed it out. Will be giving him all the information tomorrow.

            Cheers

            Comment


            • #7
              Re: Breach Of Contract ?

              How long has he been employed by the company?

              Comment


              • #8
                Re: Breach Of Contract ?

                Originally posted by Birdie View Post
                How long has he been employed by the company?
                About three and a half years !!

                Comment


                • #9
                  Re: Breach Of Contract ?

                  Originally posted by Jester View Post

                  As if that is not insulting enough, his employers have decided to deduct £250 from his wages to pay for this second handyman. That £250 will continue to be deducted from his future wages to continue paying for the second handyman.
                  How have they advised him regarding the deduction?

                  Unlawful deduction of wages
                  Constructive dismissal
                  Breach of contract

                  Ouch!

                  Do they have a company grievance procedure? How often do they have an appraisal, if at all, which should have highlighted any issues with his work? Basically, does he have any documentation that highlights how well he works? He needs to gather as much evidence for a constructive dismissal claim here. Employer may well settle out of tribunal, but best to be on the safe side.

                  Seriously do not bother with CAB - ACAS is your best bet as previously stated - be careful though with any tribunal claim as he only has a certain amount of time to get this in.

                  Comment


                  • #10
                    Re: Breach Of Contract ?

                    OK. As I understand it, he was off sick for a week or two. During that time, the Care Home owner decided to get another handyman in which was to simply cover for the formers absence as far as anyone was aware.

                    The first he knew of any of this was when he received his wages this month when there was a note in with his payslip telling him 'his performance has been unsatisfactory and as such, they have been forced to employ a second handyman to assist him and that they are deducting £250 from his wages to pay for the second handyman and that this will continue each month'.

                    Anyway, my wife has spoken to him today and passed on some of the information already received from here to him - including the number for ACAS. However, we also now know that he has spoken to CAB last Friday who advised him to 'write a letter' (whatever that means).

                    Obviously, he is very cut up about all this and is somewhat reluctant to talk about it at the workplace, so my wife did not get an awful lot of information from him. But he was grateful for the information he received and is aware that there is more to come now that I have replaced the ink in my printer.

                    The really upsetting part of all this for him is that he is a single parent of four very young children and is only paid a minimum wage anyway. At this stage of the year, losing £250 per month is something he can ill-afford.

                    The owner of the Care Home is a very wealthy Pakistani who switches his time between Pakistan and the UK (he lives in Eastbourne) spending a month in the UK, then a month in Pakistan, then back to the UK etc etc

                    The Care Home have all the procedures in place, but the owner seems to disregard anything to do with UK employment law whenever he chooses to do so. It is my wife's assertion that the owner will argue this all of the way until he is forced to climb down on the matter. I have already told her that she should advise the handyman to talk to ACAS as they will be able to advise him most proficiently on the matter. It is my understanding that ACAS would also make representations on his behalf to the employer ? (am I correct in this assertion ?).

                    The thing is that this employer must be made to understand is that employees in this country DO have rights. I know that he also has business interests in Pakistan where I understand that employee rights are extremely minimal. This man must be made to realise that what he can get away with in Pakistan is not tolerated in the UK. After all, if he gets away with this then what is to stop him persecuting another member of staff just so that he can save a bit more money to pay for his lavish lifestyle. Very few of the staff at the Care Home are paid more than the UK minimum wage. The ones that are paid more than that are rarely more than 50-75p per hour better off

                    Comment


                    • #11
                      Re: Breach Of Contract ?

                      Originally posted by Jester View Post


                      The Care Home have all the procedures in place,
                      I wonder whether they actually comply with employment legislation!

                      Originally posted by Jester View Post
                      It is my understanding that ACAS would also make representations on his behalf to the employer ? (am I correct in this assertion ?).
                      You're probably thinking of this: ( basically they do not make representation, more mediation to try to stop the matter going to tribunal and to resolve it asap. )
                      Resolving Disputes



                      The framework for resolving employment disputes in Great Britain emphasises the importance of the early resolution of workplace matters in the workplace. It consists of two key elements:
                      • legislative measures; and
                      • non legislative measures

                      and gives employees and employers flexibility to deal with workplace discipline and grievance issues in a way which suits them best.
                      Legislative measures

                      The legislative measures are based on the Employment Act 2008. The Act paved the way for the revision of the Acas statutory Code of Practice on discipline and grievance, which now sets out the principles that employers and employees should follow when dealing with disputes at work.
                      The foreword to the Code highlights that employers and employees should always seek to resolve disciplinary and grievance issues informally.
                      However, where an issue cannot be resolved informally, then it may be pursued formally. According to the Code, employers and employees should behave fairly and reasonably when taking formal action to resolve their dispute.
                      The Acas Code specifies what employers and employees should do to achieve a reasonable standard of behaviour in handling grievance and disciplinary/dismissal situations at work. However, sometimes it will not be practicable for employers and employees to take all the steps set out in the Acas Code of Practice: what is classed as reasonable behaviour will depend on the circumstances of each case and is ultimately a matter for employment tribunals to decide.
                      Whenever a disciplinary or grievance process is being followed, the basic principles of fairness set out in the Acas Code should still be observed. For example, issues (both employers’ and employees’) should be raised and dealt with promptly and there should not be unreasonable delays in holding meetings, making decisions or providing confirmation of those decisions. Employees should be informed of the allegations against them and should be given an opportunity to put their case in response before decisions are reached. Employers should allow employees to be accompanied at any formal disciplinary or grievance meeting and should give them the right to appeal before a decision is reached.
                      Although a failure to follow the Code does not, in itself, make a person or organisation liable to proceedings, employment tribunals are legally required to take the Code into account when considering relevant cases. The employment tribunal will consider whether a failure to follow the Code was unreasonable and may take into account factors such as the size of business. The tribunal has discretion to adjust any awards made to either party by up to 25 per cent for unreasonable failure to comply with any provision of the Code. This means that if the tribunal considers that an employer has unreasonably failed to follow the guidance set out in the Code they can increase any award they have made by up to 25 per cent. Conversely, if they feel an employee has unreasonably failed to follow the guidance set out in the code they can reduce any award they have made by up to 25 per cent.
                      Non legislative measures

                      The Government also invests a significant amount of resources in services to help employers and employees resolve their disputes earlier:
                      Enhanced Acas helpline

                      The enhanced Acas helpline, now open 8.00 am to 8.00 pm Monday to Friday and 9.00 am to 1.00 pm on Saturday, will help employers and employees and their respective representatives to identify the most appropriate way to deal with their disputes as well as offer free, confidential and impartial advice on all employment rights issues.

                      Acas helpline: 08457 47 47 47
                      Early conciliation

                      This early conciliation service (“Pre-Claim Conciliation”, or “PCC” for short) is a free service for both employers and employees in appropriate circumstances i.e. where they are facing problems which are potential employment tribunal claims. It is delivered via a network of Acas conciliators across Great Britain. Disputes that employers and employees have been unable to resolve by other means (such as internal grievance, discipline or appeal procedures) and which are likely to give rise to an employment tribunal claim if third party help is not provided, may be suitable for early conciliation.
                      The Acas helpline advisers will be able to identify whether a particular case may be suitable for referral to the pre-claim conciliation service, and if so, will put the parties in touch with a conciliator.
                      Individual conciliation

                      Where a tribunal claim has been made, Acas offers conciliation free to both sides with the aim of resolving the matter without the need to attend a hearing.
                      "Acas Arbitration Scheme

                      The Acas arbitration scheme can be used by parties to decide cases of alleged unfair dismissal or claims under flexible working legislation (where there are no complex legal issues) as a means of resolving the dispute without the cost and stress of going to a tribunal."
                      Originally posted by Jester View Post
                      Very few of the staff at the Care Home are paid more than the UK minimum wage. The ones that are paid more than that are rarely more than 50-75p per hour better off"
                      So - if he is practically on minimum wage on a normal month's pay, then being down £250, I suspect that they are not paying minimum wage to him?!?!?!

                      Get him to call ACAS to see what they suggest, however, being mindful of the fact that he is down £250 and that he needs to show a tribunal (and ACAS) that he has tried to deal with this informally, I would suggest that he verbally lets his manager/supervisor know that the deduction is not lawful, (if his manager or supervisor is the rich git, then see if there is anyone else that can take a message, let me know what joy he gets from ACAS and what the manager says and I'll then draft you a letter. The sooner he lets them verbally know the better. I cannot access LBs at work so will not be on here until later tomorrow evening.

                      xxxx

                      Comment


                      • #12
                        Re: Breach Of Contract ?

                        And fwiw, might be worth him contacting WFTC to see if he can get tax credits due to the sudden drop in his income. I know they are supposed to work on the last tax year but they do say to inform them of any changes, and i know from experience they are quick enough to stop/reduce payment if income goes up, so should be the same if income suddenly decreases.
                        Is no longer here

                        Comment


                        • #13
                          Re: Breach Of Contract ?

                          A bit more info:-

                          Employment contract terms : Directgov - Employment

                          cnjw
                          CAVEAT LECTOR

                          This is only my opinion - "Opinions are made to be changed --or how is truth to be got at?" (Byron)

                          You and I do not see things as they are. We see things as we are.
                          Cohen, Herb


                          There is danger when a man throws his tongue into high gear before he
                          gets his brain a-going.
                          Phelps, C. C.


                          "They couldn't hit an elephant at this distance!"
                          The last words of John Sedgwick

                          Comment


                          • #14
                            Re: Breach Of Contract ?

                            plus loads more from Tools here:-

                            Pay and employment contracts - Legal Beagles

                            (I should have known it would be covered somewhere on this site! - sorry Tools, I will look harder next time!!)

                            cnjw
                            CAVEAT LECTOR

                            This is only my opinion - "Opinions are made to be changed --or how is truth to be got at?" (Byron)

                            You and I do not see things as they are. We see things as we are.
                            Cohen, Herb


                            There is danger when a man throws his tongue into high gear before he
                            gets his brain a-going.
                            Phelps, C. C.


                            "They couldn't hit an elephant at this distance!"
                            The last words of John Sedgwick

                            Comment


                            • #15
                              Re: Breach Of Contract ?

                              An update.

                              Wife spoke to him yesterday in work and passed on all the excellent advise received from here. He asked her to ask me to send you all a big thankyou.

                              Seems he has now seen a solicitor and that solicitor is drafting a letter to send to the owner of the Care Home. Seems the Solicitor also picked up on the fact that since they are deducting £250 from his wages each month, then he is effectively being paid below the national minimum wage. The Solicitor has apparently also picked up on many other points of employment law that is being broken by this action.

                              Obviously, I don't know the contents on the letter being drafted but I will keep everybody updated on progress as news comes out.

                              Cheers all

                              Comment

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