employment law help needed

[50420]

Hi all, I realise that employment law can be a bit of a minefield at times, but am hoping that someone can answer this for me, or to be more precise, my girlfriend.

She works for a 'community care' company, providing support for the elderly and infirm. she recieved her christmas rota last friday and was happy that she had been rota'd off for christmas eve and christmas day, but later agreed to work the morning of christmas eve due to staff shortages. she's currently in work at the moment but just phoned me to say her employer had just called her and asked her to work the rest of christmas eve and christmas day. the shifts can be starting at 6am right through till 11pm with a couple of half hour breaks here and there, but they havent specified what she will be required to work on those days.

she refused, but was angrily informed by her co-ordinator that she cant refuse and has to be in work on the days requested. she called me from outside a clients house and was more than a bit upset.

I've advised her to call the office back and point blank refuse to work on the days they are requesting. my reasoning being, the rota's are signed for when they are recieved, my girlfriend did this. employees are requested to make themselves available to cover other staff when required, she is covering for someone on christmas eve morning... and has done so nearly every week for the past month.

my girlfriend believes they may sack her or go down the discipinary route if she does this.

does anyone have a definitive answer i can give her?

any advice appreciated

[webcrawler2050]

Originally Posted by 50420

Hi all, I realise that employment law can be a bit of a minefield at times, but am hoping that someone can answer this for me, or to be more precise, my girlfriend.

She works for a 'community care' company, providing support for the elderly and infirm. she recieved her christmas rota last friday and was happy that she had been rota'd off for christmas eve and christmas day, but later agreed to work the morning of christmas eve due to staff shortages. she's currently in work at the moment but just phoned me to say her employer had just called her and asked her to work the rest of christmas eve and christmas day. the shifts can be starting at 6am right through till 11pm with a couple of half hour breaks here and there, but they havent specified what she will be required to work on those days.

she refused, but was angrily informed by her co-ordinator that she cant refuse and has to be in work on the days requested. she called me from outside a clients house and was more than a bit upset.

I've advised her to call the office back and point blank refuse to work on the days they are requesting. my reasoning being, the rota's are signed for when they are recieved, my girlfriend did this. employees are requested to make themselves available to cover other staff when required, she is covering for someone on christmas eve morning... and has done so nearly every week for the past month.

my girlfriend believes they may sack her or go down the discipinary route if she does this.

does anyone have a definitive answer i can give her?

any advice appreciated

They can't "demand" her to work. If she was scheduled to work off then shes off. However, is she has volunteered to work the morning then this *may* cause issues. It would depend on her contract.

She can point blank refuse and advised she was only helping out in the morning as a gesture of goodwill. She needs to advise her employer, that she had plans with family as she had plans due to her "being off"

[superbiatch]

It seems she will be covering someone else who should have been on the rota - why can't they work it?? I think she can say no, but thats not to say her management won't give her a hard time and my experience of working in the care field is the latter

[webcrawler2050]

Originally Posted by superbiatch

It seems she will be covering someone else who should have been on the rota - why can't they work it?? I think she can say no, but thats not to say her management won't give her a hard time and my experience of working in the care field is the latter

All depends on her contract.

[50420]

Originally Posted by webcrawler2050

All depends on her contract.

she doesnt have a contract. the staff for this company dont have contracts of employment!!!!

they collect thier rota's on a friday, sign for them if the hours are agreeable...or the hours are mutually agreed on, then signed for.

I'm not sure on this, and i'm sure someone will correct me but isnt it a legal obligation for an employer to provide you with a contract of employment....regardles of whether that contract stipulates hours of employment or not?

btw...many thanks for all the relies

[webcrawler2050]

Originally Posted by 50420

she doesnt have a contract. the staff for this company dont have contracts of employment!!!!

they collect thier rota's on a friday, sign for them if the hours are agreeable...or the hours are mutually agreed on, then signed for.

I'm not sure on this, and i'm sure someone will correct me but isnt it a legal obligation for an employer to provide you with a contract of employment....regardles of whether that contract stipulates hours of employment or not?

btw...many thanks for all the relies

Then they employer doesn't have a leg to stand on. Tell them no. It's not on her rota.

[martyh]

Originally Posted by 50420

she doesnt have a contract. the staff for this company dont have contracts of employment!!!!

they collect thier rota's on a friday, sign for them if the hours are agreeable...or the hours are mutually agreed on, then signed for.

I'm not sure on this, and i'm sure someone will correct me but isnt it a legal obligation for an employer to provide you with a contract of employment....regardles of whether that contract stipulates hours of employment or not?

btw...many thanks for all the relies

no it isn't a legal requirement to have a contract ,however the terms of her contract should have been layed out when she started and she is entitled to have a written summary of the terms within (i think)2 weeks of starting the job
in other words a contract is said to be agreed upon by her accepting the job
it would seem to me that the fact that she has to sign for the hours she has to work is in effect a contract between the employer and employee on a weekly basis which would imply that an agreement has been reached and cannot be changed without agreement from both parties
i would tell your girlfriend to stand her ground they cannot make her work for hours she hasn't agreed on ,any employer will try it on when faced with a staffing problem just to see who they can use to cover other absencies
hope this helps ,this info is from when i used to be a manager and in charge of hireing and fireing within a construction company so my knowledge is only basic

[50420]

Cheers for all the responses guys...it really is much appreciated.


the problem is...and i think my girlfriends employers realise this.. is that she finds it hard to say no and she doesnt do confrontations...so they take advantage when it suits em.

in fairness she did say no initially tonight, but when her boss got angry, rather than stick to her guns, she's said she will think about it.

..as an update... she called her co-ordinator back to let her know she wasn't going to work the requested days, but the out of hours co-ordinator was there....who apparently is 'very nice'. she just accepted the call and said thanks for letting us know.

my girlfriend belives the hassle (for want of better words) will come tommorow when she picks up next weeks rota (a day early due to it being christmas) the co-ordinator..along with management will be there. I've said she should stick to her guns...but like i've said above she may just fold under pressure.

[Down the Pub]

my missus would have every sympathay for your g/f (at least if she was reading this), she has been doing community care work for 10 years or more. and every agency is the same i.e. she has left them as they always began to take the you know what.

as soon as they get a sniff they'll be on to you do do cover work and as soon as you refuse or say you can't work this or that they get shirty. the one she has not long left were all niceness and smiles when she started, but when she said she couldn't do certain shifts to cover others they got arsey. kept mucking her standard rota around like taking some of her usual clients off her etc etc.

not so long ago she had to finish early due to a water infection, got over it and went back next day. a few weeks on a weekend she had to come home unwell - for which i had to call an ambulance. i rand the on-call for her to say that she wouldn't be back in that day. the moose on the other end didn't belive me that she was unwell and in not so many words came across that she thought she was pulling a fast one. i just hung up, but had to get one back, so rang back and told her what i thought - oh and that she is currently on her was to hospital (which shut her up) and hung up again.


so the wife jacked them a few weeks ago, and is now working in a home 2 nights a week for more money - and she's much happier in her job.



and just in case you wondered........she's ok now, was an infection of the cartlidge in the chest which can give symptoms of your heart having a bit of a dickie.

[50420]

after the fuss they made earlier, they actually phoned my girlfriend back and told her that one of the girls she would be working with this evening had phoned in to say her car wouldnt start and told my girlfriend to go pick her up. 7miles to get her...10 miles back to the client...... and at the end of the shift, 10 miles to take her home... 7miles for my girlfriend to get back home. and no fuel allowance!!! awesome company

[webcrawler2050]

Originally Posted by 50420

after the fuss they made earlier, they actually phoned my girlfriend back and told her that one of the girls she would be working with this evening had phoned in to say her car wouldnt start and told my girlfriend to go pick her up. 7miles to get her...10 miles back to the client...... and at the end of the shift, 10 miles to take her home... 7miles for my girlfriend to get back home. and no fuel allowance!!! awesome company

Joyfull ......

[Flyboy]

Originally Posted by 50420

she doesnt have a contract. the staff for this company dont have contracts of employment!!!!

Not necessarily essential in these circumstances, in fact it could possibly be in her favour. How long has she been working for the company and how long has she been in her current post?

they collect thier rota's on a friday, sign for them if the hours are agreeable...or the hours are mutually agreed on, then signed for.

How long has this arrangement been in place and how long has she complied with this system?

I'm not sure on this, and i'm sure someone will correct me but isnt it a legal obligation for an employer to provide you with a contract of employment....regardles of whether that contract stipulates hours of employment or not?

btw...many thanks for all the relies

There are certain limits in regards to timing, but essentially, yes. This however, can be assuaged by certain tenets and could also serve to be an advantage to some employees, in certain circumstances.

[50420]

Originally Posted by Flyboy

Not necessarily essential in these circumstances, in fact it could possibly be in her favour. How long has she been working for the company and how long has she been in her current post?

she's been in the job since mid august (in the same position)

Originally Posted by Flyboy

How long has this arrangement been in place and how long has she complied with this system?

the arrangement has been in place since the day she started, its also the same arrangement for all the care workers. and she has complied since day one...and made herself available to cover staff absenteeism since day one (she has covered a minimum of at least one shift per week since she started the job)

Originally Posted by Flyboy

There are certain limits in regards to timing, but essentially, yes. This however, can be assuaged by certain tenets and could also serve to be an advantage to some employees, in certain circumstances.

she's in work at the moment (covering for someone again), and she's due to pick up her rota around dinner time. she's a bit concerened that the co-ordinator and management will have a go at her. I've filled her in on the responses in this thread, so hopefully she wont back down.

[Flyboy]

In terms of her employment rights, it is not going to be settled quickly enough for her to defend herself in these circumstances. But, as she has already agreed to cover shifts in the past, it may be argued that that is part of her normal working pattern. This is where a contract is essential. If her normal working pattern had been constant and did not involve erratic shift patterns, then it could be argued that covering for someone at Christmas was outside of her normal schedule.

As far as the contract is concerned, the employer has a duty to provide a written statement of employment with three months of the start date. It has not been long since then and the employer may argue that the Christmas period has hampered their efforts to issue the contract (although, depending on the tribunal chair, this may not wash, three months is ample time, irrespective of the time of year). However, seeing as NO employees have contracts, it is unlikely that this will be taken into account.

The absence of a contract does not erode any rights your partner has. She is still protected by the different laws applicable to her situation and she should seek to to get advice form a solicitor who specialises in employment law as soon as possible. Failing that she should contact the Citizens Advice Bureau.

Before her current employer dismisses her for refusing to work, she should demand a contract, immediatley. If she is dismissed because she refuses to work, a tribunal will not hear her case, as she has not worked for employer long enough. However, if she is fired after demanding a contract of employment, it could be claimed that she was dismissed because she was attempting to exercise her rights as an employee, this carries no limits in terms of length of service.

[Hom3r]

I would tell them to OFF.

Its against my religon to to work christmas day, then there are stuffed.