Comments by Emma Bell

Emma Bell
Member - 7 posts

Thank you for your question.

This question fundamentally relates to whether or not these bank staff can be seen as employees or workers.

If they are deemed to be employees then there are entitled to holiday pay and a sick leave. To determine whether the bank staff are employees, I would recommend that the terms and conditions of the periodic contracts are looked at, they may contain a clause specifically stating that the engagement is on an ?ad hoc or casual basis?. If this is the case there may be no contract of employment. A contract is unlikely to exist unless there are minimum obligations to offer and accept work that cannot be reduced, by either of the parties.

Furthermore, where workers are employed on short-term periodic contracts where there is no obligation on the employer to provide any work and no obligation on the worker to accept any work, a contract of employment may not exist - there is no mutuality of obligation. This is the case even when there are deductions of tax and national insurance during the actual period of working.

It is likely that, if the bank staff do not fall into the category of employee, they will fall within the definition of ?workers? in terms of the Working Time Relations 1998. These regulations contain provisions in relation to holiday pay and entitlement, in respect of workers.

Emma Bell
Member - 7 posts

Thank you for your question.

There is no legal obligation to give time off. If you do agree to allow the employee time off, you may at the outset want to agree a specific amount of time off. Perhaps you may allow some paid absences from work for appointments and agree that she uses her holiday entitlement for some of the appointments.

As the employer you should speak to the woman concerned and find out exactly what the requirements are likely to be and take into account any previous approach cases if there has been a similar situation in the past. You should also take into account and any policies you may have in place. You should be consistent in your handling of the situation and also be aware that you may be setting a precedent for the future.

I have assumed that this is a female employee. If the employee is a male and you have previously allowed females time off, to treat the male employee differently and less favourably, there is a risk he may bring a claim of sex discrimination.

Emma Bell
Member - 7 posts

Thank you for your question.

When an employer is deciding which employees should be in a pool for selection in a redundancy situation it is necessary to consider the employees in the ?undertaking?, rather than the employees of associated employers in terms of section 105(1)(b) of the Employment Rights Act 1996.

In determining if employees are part of the same undertaking the employers should be looking at whether there is evidence of organisational unity or common management.

The employer should identify all those employees in the undertaking that have transferable skills who should be in the pool for selection.

The concept of associated employers is relevant once an employee has been selected as potentially redundant. At this stage an employer has an obligation to consider whether there are any suitable alternative positions within the company or any associated employer that could be offered to the employee, thus preventing the redundancy. Failure to do this could result in a claim for unfair dismissal.



ERA s.231 states that 2 employers shall be treated as associated if: one is a company, of which the other (directly or indirectly) has control. Two issues must be addressed; firstly what constitutes a company under s.231; and what constitutes control?

1. In terms of section 231 of the Act, a company is one, which is incorporated as a limited company and not any other statutory bodies corporate. Community Action Furness meets this criterion as it is limited by guarantee.

2. The concept of ?control? is legal rather that factual and is determined by the number of votes attached to shares which, are exercised at general meetings. A negative control (50% shareholding) is not deemed sufficient to exercise control. Voting control is the usual and normal way of determining whether two employers are associated, however, the test if not conclusive.

Emma Bell
Member - 7 posts

1. You do not state whether there is any written contract that exists between the parties. In the absence of this information I can only provide general advice to you.

The Steward puts himself and his labour at the disposal of another in return for some remuneration in kind (in this case, housing, heating and lighting.) The resulting contract is called a contract of service.

The Employment Rights Act defines ?employee? as one who works (or worked) under a contract of employment; and a ?contract of employment? is a contract of service or apprenticeship.

In terms of Section 1 of the Employment Rights Act 1996 an employer is under a duty to give his employees particulars in writing of certain important terms of their contract not later than two months after the beginning of the employee?s employment. This includes the title of the job that the employee is employed to do or a brief description of the work for which the employee is employed. It is important that both parties are operating in a clear framework with a written job description, and terms setting out holiday entitlement, termination and notice periods etc.

2. Employers must manage health and safety in the same way that any other commercial activity is managed. Any premises that are frequented by members of the public must comply with the relevant Health and Safety legislation. These assessments should be recorded as best practice and in the event of a claim being made against you it would be necessary to produce these records as a defence.

For more information see www.hse.gov.uk

Emma Bell
Member - 7 posts

As I am unaware as to the terms of the employee's contract, I can only provide general advice to you.

The employee is entitled to be paid for the amount of days she has worked; in the absence of the contract I do not have any information to support any argument to the contrary. In addition, the employee will need to be paid for any part of a day's holiday that she has acrued.

Failure to pay her for the days she has worked would entitle her to make a claim to an Employment Tribunal of unlawful deduction from wages. The employee would have three months from the relevant payday to raise such a claim.

It is advisable to pay the employee the wages owed in exchange for the return of the keys.

Emma Bell
Member - 7 posts

Allan,

Thank you for your query.

Provided that the employer and employees and are in agreement over the essential terms of the contract, such as hours and wages, the existing contract of employment is valid and enforceable by either party. Albeit that both parties are operating in an unclear framework in the absence of a written job description. However, in terms of Section 1 of the Employment Rights Act 1996 an employer is under a duty to give his employees particulars in writing of certain important terms of their contract not later than two months after the beginning of the employee?s employment. This includes the title of the job that the employee is employed to do or a brief description of the work for which the employee is employed. The job description may be implied by custom, but this will not be implied lightly. The custom must be reasonable, notorious and certain.

The issue is whether the written job descriptions merely reflect the implied job descriptions or whether you intend to change the employee?s implied job description (i.e. by adding more duties)

Care must be taken as no change in an employee?s contractual terms may be made without the consent of the employee. Such consent may be expressed by the employee agreeing to the change orally, or preferably in writing. Alternatively, it may be implied by the employee continuing to work for the employer without protest for a significant period of time whilst being aware of the change. The correct avenue to take is to consult with the employees first on the proposed change to their existing contracts by this inclusion of a job description. If you can secure their agreement to this, then this will bar any claim future claim for breach of contract.

Any change in contractual terms to which an employee does not consent is, on the face of it, a breach of contract. If the change is a significant one, the employee may be entitled to resign and claim that the change is a material breach of contract which would entitle him to present a claim to an employment tribunal for constructive unfair dismissal. In other words, such a claim would be based upon the employee alleging that, because of the change to his or her contract of employment, he or she had no alternative but to resign and claim unfair dismissal.

If any changes are made to an employee?s contractual terms, a written statement must be given to the employee at the earliest opportunity and, in any event, not later than one month after the change is made.