Employment law question

[CJ]

A friend works for a small garden centre that employs around 25 people. Due to the recent weather conditions the garden centre has told the staff not to attend work for 3 days but has indicated that the staff would not get paid for the time off even though most (if not all) are available for work.

 

I have asked my friend what her contract states regarding lay offs and she has told me that none of the staff actually have a contract! Surely both actions (laying off without pay and no contract) contravene certain employment laws?

 

I have looked here and it seems that the law says it depends on their contract but usually they should get paid.

 

Any employment law folks like to comment please?

[CJ]

A quick bump in case folks missed it first time round.

[marbleapple]

I suspect it all depends as to whether they are in fact classed as employees and most importantly what the contact says. If they are simply free lance workers, paid in cash and who are called upon when needed then I suspect that is that.

[CJ]

I suspect it all depends as to whether they are in fact classed as employees and most importantly what the contact says. If they are simply free lance workers, paid in cash and who are called upon when needed then I suspect that is that.

 

These are all full time employees with fixed hours of work but without contracts.

[Guest Budz86]

The lack of contracts from this company may well be a way of them getting out of paying staff in situations like this. There is nothing wrong with them being classed as casual staff and not having a contract, seen it happen before.

 

The fact that they are working full time fixed hours could make it 'ethically' wrong for them not to have contracts, but not illegal. Just a loophole some companies use.

[ilicos]

The lack of contracts from this company may well be a way of them getting out of paying staff in situations like this. There is nothing wrong with them being classed as casual staff and not having a contract, seen it happen before.

 

The fact that they are working full time fixed hours could make it 'ethically' wrong for them not to have contracts, but not illegal. Just a loophole some companies use.

 

Not correct mate, In the absence of a contract supplied by the employer, the statutory employment contract kicks in immediately.

 

CJ, have they given the employees the right to take the days from their annual leave?

[CJ]

Not correct mate, In the absence of a contract supplied by the employer, the statutory employment contract kicks in immediately.

 

CJ, have they given the employees the right to take the days from their annual leave?

 

I don't think so my friend. They were sent a text telling them not to come in on Friday, Saturday and today. My friend then had another text today saying that providing there wasn't heavy snow tonight she should go to work tomorrow.

 

I asked if she was able to get to work on the days they asked her not to attend and she confirmed that she could have got there without any problems.

 

In my opinion, the employer has decided that as the weather was bad there probably would not have been any customers and therefore did not want the staff in drawing wages.

[Havard]

An employment contract doesn’t have to be in writing. However, 'employees' are entitled to a written statement of their main employment terms within two months of starting work.

 

Our policy at work is that if the employer has made the decision that employees should not come into work becuase of the weather then the employees should be paid. But if the employer has work and the employee doesn't come in due to the weather then the employer is under no obligation to pay them.

 

Regards

[Abz]

CJ this does depend quite a bit on a contract, without one they don't really have legal standings against the employer. For example if an IT Contractor gets called to say that no work is required for next week, he then gets no pay if there is no work. He also gets no annual holiday, does not get paid on bank holidays etc. Their benefit is that they normally get paid a higher rate than a employee of the firm.

 

So the question is are they working for them on a sub contractor basis? In which case no work, means no pay.

 

Are they an employee & get paid annual holidays etc (Bank Holidays including)?

 

If they are the 2nd question then they could have some ground, though I am not sure 100%.

[CJ]

....Our policy at work is that if the employer has made the decision that employees should not come into work becuase of the weather then the employees should be paid. But if the employer has work and the employee doesn't come in due to the weather then the employer is under no obligation to pay them.

 

Regards

 

That is what I assumed would be the case in most operations.

[CJ]

CJ this does depend quite a bit on a contract, without one they don't really have legal standings against the employer. For example if an IT Contractor gets called to say that no work is required for next week, he then gets no pay if there is no work. He also gets no annual holiday, does not get paid on bank holidays etc. Their benefit is that they normally get paid a higher rate than a employee of the firm.

 

So the question is are they working for them on a sub contractor basis? In which case no work, means no pay.

 

Are they an employee & get paid annual holidays etc (Bank Holidays including)?

 

If they are the 2nd question then they could have some ground, though I am not sure 100%.

 

They are employees that get paid annual leave and bank holidays etc. You have to remember these people are working at a garden centre - not an IT operation

[marbleapple]

They are employees that get paid annual leave and bank holidays etc. You have to remember these people are working at a garden centre - not an IT operation

 

CJ Abz point is valid imo. Just because they have agreed hours doesn't automatically class them as employees. Whether they are employees is based on the facts. Who pays their tax, how they are paid etc etc

[Abz]

They are employees that get paid annual leave and bank holidays etc. You have to remember these people are working at a garden centre - not an IT operation

Yes I did the first post

 

CJ Abz point is valid imo. Just because they have agreed hours doesn't automatically class them as employees. Whether they are employees is based on the facts. Who pays their tax, how they are paid etc etc

Contractors from all different walks of work the same rule applies in the sense if they don't have work from the employer than they don't get paid.

 

You friends case is a bit weird as they are paying them holidays and on bank holidays so not like a contractor. Have they asked the employer for a contract? Some terms & condition's of their work. Employer could end up arguing that they are a small business and due to weather condition's they could not open the shop?

[CJ]

CJ Abz point is valid imo. Just because they have agreed hours doesn't automatically class them as employees. Whether they are employees is based on the facts. Who pays their tax, how they are paid etc etc

 

Both the employer and employee pay NI and IR directly from their monthly salary i.e. the money is deducted at source by the employer and paid to the relevant agency.

[CJ]

CJ Abz point is valid imo. Just because they have agreed hours doesn't automatically class them as employees. Whether they are employees is based on the facts. Who pays their tax, how they are paid etc etc

 

I am really confused by this. In my naivety I always assumed that once someone offers me a job, tells me the hours I am going to work and how much I am going to get paid and then proceeds to pay me on that basis (including taking deductions for tax etc) I am an employee of that firm.

 

Is that not the case?

[Abz]

I am really confused by this. In my naivety I always assumed that once someone offers me a job, tells me the hours I am going to work and how much I am going to get paid and then proceeds to pay me on that basis (including taking deductions for tax etc) I am an employee of that firm.

 

Is that not the case?

 

Technically yes, if the employer has been paying NI & IR directly from their monthly wages. Though when it comes to job terms you would need to refer to employment contract to state things like this.

 

I'd speak to the employer first, failing that then look at legal routes.

[CJ]

Technically yes, if the employer has been paying NI & IR directly from their monthly wages. Though when it comes to job terms you would need to refer to employment contract to state things like this.

 

I'd speak to the employer first, failing that then look at legal routes.

 

And if they haven't issued a contract? I still think they are in breach of some sort of legislation by not issuing a contract and / or terms and condition's.

[marbleapple]

Technically yes, if the employer has been paying NI & IR directly from their monthly wages.

 

Its only an indicator of employment but a strong one. If the employer argued that the person was not an employee and the person argued that they were then it would but up to an employment tribunal. Nothing is bloody guaranteed or certain in this life.

 

Both the employer and employee pay NI and IR directly from their monthly salary i.e. the money is deducted at source by the employer and paid to the relevant agency.

 

I also note CJ that the word agency was mentioned in which case the person might be an employee of the agency and a contractor of the garden centre, hence no contract.

[CJ]

...I also note CJ that the word agency was mentioned in which case the person might be an employee of the agency and a contractor of the garden centre, hence no contract.

 

I used the term agency as a generic term as I don't know the latest titles of the IR or NI people.

[marbleapple]

I used the term agency as a generic term as I don't know the latest titles of the IR or NI people.

 

Ah ok mate

[CJ]

Its only an indicator of employment but a strong one. If the employer argued that the person was not an employee and the person argued that they were then it would but up to an employment tribunal. Nothing is bloody guaranteed or certain in this life.

So, going back to my earlier comment that if someone was offered a position and agreed a salary, date of pay and hours that wouldn't necessarily mean they were an employee?

 

That cannot be right surely.

[marbleapple]

So, going back to my earlier comment that if someone was offered a position and agreed a salary, date of pay and hours that wouldn't necessarily mean they were an employee?

 

That cannot be right surely.

 

CJ you are not going to get a definitive answer from me on this subject, I am not an employment law solicitor. My comment was that nothing is guaranteed.

 

For example, as I said before, you firned says she is an employee, IF the company says she isnt, it goes to a tribunal and they look at the evidence. MOst company's wouldn't argue this topic at all since the evidence might be clear. Only problem is that nothing is written down to say they have an agreement about anything. Now presumably your mate can show proof of regular payments, tax and NI taken at source, regular hours etc and only then would a tribunal make a decision.

 

The employment contract usually has the terms of the employment as does the handbook. If they don't have one then the tribunal might infer terms based on past practice etc.

 

At the end of the day the company might be breaking the law (I don't know) but what is your mate going to do about it in reality? Argue and lose her job?

[CJ]

....At the end of the day the company might be breaking the law (I don't know) but what is your mate going to do about it in reality? Argue and lose her job?

 

And that, sadly, is the situation she finds herself in

 

She went in today and asked the owner if they were getting paid for the four days that the company told them not to attend and the lady said that under employment law, she is allowed to lay people off without pay.

 

Now, I am pretty sure she isn't but as we both said earlier, it isn't worth getting fired for. However, I have told my friend to get another job ASAP.

[marbleapple]

I suspect the owner is just oblivious to the law. I think the less you know about it the easier it is usually

[CJ]

I suspect the owner is just oblivious to the law. I think the less you know about it the easier it is usually

 

I find that with most things in life