Constructive Dismissal: Question

Simebaby · 4 Aug 2006 at 21:32

Hi All

Just after a bit of advice on behalf of a friend who runs his own business:

Today one of his employees has left, and stated he is looking to take him to a tribunal(?) for contructive dismissal. The reasons he gave are:

Agreed hours were 40 hr/wk - he is working on average 45.
He drives a company van with 2 bald tyres - these have not been fixed.
He has no time for breaks between jobs - he's too busy.
He says that he was promised 22 days holiday PLUS bank holidays - my friend says he was promised 22 days holiday INCLUDING bank holidays).

The two main points I'd like views on are:

The only thing he's actually mentioned to my friend is the bald tyres - he's not mentioned any other problems until today.

He doesn't actually have a written contract of employment, so no agreement for anything has been signed between them. He says they have a verbal contract, now I thought the old adage of "not worth the paper it's written on" was true here (well, verbal contracts are valid - but they are VERY difficult to prove).

Thanks to anyone for your views / experience. The advise given here will not be used in a court of law.

alexakasloth · 4 Aug 2006 at 21:33

If he (the fired one) can't prove the verbal contract then he has nothing to stand on.

yermum · 4 Aug 2006 at 21:36

A lot depends on how long said employee had been with the company. If he had been there a while he should have been given a contract of employment, so your friend could be in trouble because of that too.

scorza · 4 Aug 2006 at 21:37

Here's a useful link: http://www.compactlaw.co.uk/monster/empf8.html

Sounds possibly like your friend has a case to answer as the guy is claiming his terms and conditions were changed - but no contract so gonna be difficult to prove. If I were your friend I'd be a lot more worried about breaking Health and Safety laws with the bald tyres and not allowing employees time for a break. The employer does have a duty of care towards its employees.

Simebaby · 4 Aug 2006 at 21:47

yermum said:
A lot depends on how long said employee had been with the company. If he had been there a while he should have been given a contract of employment, so your friend could be in trouble because of that too.

He's been there about 16 months-ish, I think. He also said that they guy has ALWAYS been working 45 hours a week, so the hours haven't changed recently (if that has any bearing on it) - so I don't know if that muddies the waters.

The bald tyres is black and white, and my mate is in the wrong - but could he be compensated for contructive (unfair) dismissal for that? (Ignoring H&S aspects).

Glaucus · 4 Aug 2006 at 21:49

over 1 year and it starts to go in favour of the employee. But no writen contract and it'll be hard to prove.

Vanilla · 4 Aug 2006 at 21:52

He will have a tough time with no written contract.

Also, if he hasn't before mentioned most of those items your mate should be ok - you have to give a company the opportunity to make things right. It's like trying to take a company to court because you are facing bullying. If you have not gone to HR for help and given the company a chance to make things right then you don't have a leg to stand on.

Quantic · 4 Aug 2006 at 21:53

I'm sorry but no written contract of employment. No leg to stand on. Verbal contracts do indeed hold up in court if proven correctly, but in this case there is NO contract of employment. All contracts of employment must be written.

kibblerok · 4 Aug 2006 at 22:08

There probably isn't a case although if what you have said is true there should be.

Your friend needs to sort himself out.

Foghorn Leghorn · 4 Aug 2006 at 22:15

Simebaby said:
He says that he was promised 22 days holiday PLUS bank holidays - my friend says he was promised 22 days holiday INCLUDING bank holidays)

Your mates a tight git isn't he?

Fog

Borris · 4 Aug 2006 at 22:31

I read it that the employee left.

So where's the dismissal?

JBuk · 4 Aug 2006 at 22:35

Borris said:
I read it that the employee left.

So where's the dismissal?

if you have been forced to leave a job, then it can be constructive dismissal

(i`m not saying thats the case here though)

Quantic · 4 Aug 2006 at 22:37

Borris said:
I read it that the employee left.

So where's the dismissal?

Basically if an employee is FORCED to leave due it being unbearable to work due to the actions of his employer, that is known as constructive dismissal.

Teal · 4 Aug 2006 at 22:43

The absence of the written contract is a failure on the side of the employer not the employee and given the length of time he has employed this person, it is a serious failing. I would not suggest that he relies upon the absence of a written contract to defend his position.

I would suggest your friend takes advice if his ex-employee does take this further as he would appear to have a case to answer, especially on the matter of failing to provide a vehicle that could be legally driven and failing to provide adequate breaks.

Amleto · 4 Aug 2006 at 22:50

afaik, the minimum holiday per annum is 20 days (four weeks), and this is not allowed to include statutory holidays, ie bank holidays. It is also against the law to not provide a contract within one month.

Constructive dismissal? Probably not. Dodgy dealings? Oh yes.

Sputnik II · 4 Aug 2006 at 23:03

Simebaby said:
The bald tyres is black and white, and my mate is in the wrong

That is not the case. Any employee hired for the purposes of driving a company vehicle is responsible for making sure that the vehicle in question is roadworthy whilst they are driving or in charge of it, If for whatever reason the vehicle is not legal or safe to drive they should refuse to drive it until such a time that repairs have been carried out.

Teal · 4 Aug 2006 at 23:46

It may come as a surprise to some, but there is no general entitlement to have Bank Holidays on top of other paid holiday. If the contract is written to include them them it is perfectly legal to have 20 days for example to include Bank Holidays.

This is something that the Government would like to change, but right now that's how it is.

Regarding constructive dismissal; the act or acts that are beng claimed as the cause of the need to leave should be close in time to the actual resignation and ideally should have been listed in the letter of resignation.

I doubt that the hours worked would be a good justification if they have been substantially unchanged for some time as the employee effectively consented to them and did not previously complain.

The bald tyres could be perhaps since if the fault had been reported but not fixed and no alternative vehicle provided and the employee was still asked to make deliveries in the van then the employee was being forced to use an unsafe vehicle.

In any event he'll have to wait and see if the guy actually does go through with it.

JayMax · 5 Aug 2006 at 00:12

I thought all employees were legally obliged to have a Section 1 statement by law these days?
Been a while since I did law so I might be off on one here.

JayMax (LLB Hons) - a while ago

Teal · 5 Aug 2006 at 00:26

That is my understanding as well.

Sadly a lot of employers still don't meet all the requirements, especially in the lower paid jobs.

Scania · 5 Aug 2006 at 00:48

Simebaby said:
Agreed hours were 40 hr/wk - he is working on average 45.
He drives a company van with 2 bald tyres - these have not been fixed.

My contract hours are 48 p/wk yet I average 65, no sympathy there for him!

As for his van, if he's daft enough to drive it in such a condition, more fool him, again, no sympathy.

Happy soul, I am.