Employment law help please

[RYH64E]

My wife is driving me mad (again). For the last 15 years or so she's worked for a small local pre-school nursery which has recently been taken over by a larger, more commercial concern. She's been TUPE'd across and the combination of her contract not fitting with the new set up, and the particular issues that are inevitable with an all female workforce and management are causing problems, she's asked if she can come and work for me which I've told her is never going to happen!!!

Last week's problem was that they allocated 30 of her 36 hours working week and expected her to be on call for the remaining 6 hours, any time from 7am to 7pm Monday to Friday. They phoned in on Monday at 7am asking her to be at work for 8am that day instead of her scheduled 12am start. This meant I didn't get my morning cup of tea (the only thing I want first thing in the morning these days...) and I had to deal with our teenage children. This happened three times last week, the first two times she went but the third I told her not to because she'd already arranged to take our daughter to college, for which she got a telling off at work. They also think it quite reasonable to call her in for an hour first thing in the morning then send her home and bring her back for a 12-6 shift, and she's expected to work an unpaid 30 minutes at the end of the day to tidy up and lock up.

Next weeks problem is that they've all received a memo saying that there will be after hours (unpaid) staff training that they are 'expected' to attend, and that they 'musn't' miss more than two such sessions in a year. If they were paying her a salary of £40k per year I would say fair enough, but for £7.50 per hour? I've said go to the ones you want to go to and miss the rest, what can they do?

It's driving me mad, if I say 'Leave, you don't need the money and it's more trouble than it's worth' the response is 'I've been there 15 years and they're not going to force me out', if I say 'Man up and get on with it' the reponse is 'I hate it there, it's horrible'.

If I treated my staff this way there would be a riot and I'd be waiting for the constructive dismissal claims to land on my desk. They consider the terms and conditions in her contract to be an unfortunate consequence of the TUPE process and purely optional on their part. I'm happy to book her a paid for session with the employment law solicitors I use at work, but before I escalate it, what are your collective thoughts?

[9mm]

RYH64E said:

My wife is driving me mad (again). For the last 15 years or so she's worked for a small local pre-school nursery which has recently been taken over by a larger, more commercial concern. She's been TUPE'd across and the combination of her contract not fitting with the new set up, and the particular issues that are inevitable with an all female workforce and management are causing problems, she's asked if she can come and work for me which I've told her is never going to happen!!!

Last week's problem was that they allocated 30 of her 36 hours working week and expected her to be on call for the remaining 6 hours, any time from 7am to 7pm Monday to Friday. They phoned in on Monday at 7am asking her to be at work for 8am that day instead of her scheduled 12am start. This meant I didn't get my morning cup of tea (the only thing I want first thing in the morning these days...) and I had to deal with our teenage children. This happened three times last week, the first two times she went but the third I told her not to because she'd already arranged to take our daughter to college, for which she got a telling off at work. They also think it quite reasonable to call her in for an hour first thing in the morning then send her home and bring her back for a 12-6 shift, and she's expected to work an unpaid 30 minutes at the end of the day to tidy up and lock up.

Next weeks problem is that they've all received a memo saying that there will be after hours (unpaid) staff training that they are 'expected' to attend, and that they 'musn't' miss more than two such sessions in a year. If they were paying her a salary of £40k per year I would say fair enough, but for £7.50 per hour? I've said go to the ones you want to go to and miss the rest, what can they do?

It's driving me mad, if I say 'Leave, you don't need the money and it's more trouble than it's worth' the response is 'I've been there 15 years and they're not going to force me out', if I say 'Man up and get on with it' the reponse is 'I hate it there, it's horrible'.

If I treated my staff this way there would be a riot and I'd be waiting for the constructive dismissal claims to land on my desk. They consider the terms and conditions in her contract to be an unfortunate consequence of the TUPE process and purely optional on their part. I'm happy to book her a paid for session with the employment law solicitors I use at work, but before I escalate it, what are your collective thoughts?

What exactly does her contract of employment say about hours, call outs, etc?

[RYH64E]

9mm said:

What exactly does her contract of employment say about hours, call outs, etc?

Her contract specifies her main place of work (where she's actually only spending maybe 25% of her time), the number of hours, and that the hours of work will be between 7am and 7pm. It also says that three weeks notice will be given if the shift times change. There's no mention of call outs.

Her contract was TUPE'd over from the old nursery, the other employees are all on zero hours contracts desperate for as many hours as they can get whenever they can get them, but there's a problem for the nursery because they are obliged to give my wife a certain amount of fixed hours. It would be a lot easier for the nursery if my wife left as everyone would then be on zero hour contracts, and they do seem to be making things difficult for her to encourage this.

The next problem will be holidays, she is used to working school term times but she's been told that that won't be possible in future, however her contract specifies 14 weeks holiday per year... That's a lot of time to take if you're expected to work through the summer holiday period.

[Red Devil]

RYH64E said:

They consider the terms and conditions in her contract to be an unfortunate consequence of the TUPE process and purely optional on their part.

A tribunal might disagree with them.

RYH64E said:

I'm happy to book her a paid for session with the employment law solicitors I use at work, but before I escalate it, what are your collective thoughts?

From your first post she seems conflicted about what she really wants. She needs to make up her mind about this before any session otherwise the time of both parties will be wasted.

If everyone else is on zero hours contracts it is obvious that the employer would be glad to see the back of her as hers is screwing up their business model. Their tactics are designed to put pressure on her to see if she will crack. One option is to explore whether they are prepared to offer her a sufficiently attractive 'golden goodbye' package. Unless she is confident negotiator she may need professional help with this.

In the past I have been in a very similar position to your o/h. My experience is that when an organisation undergoes a take over (as is happening here) there is often no future for long serving employees of the previous organisation due to the inevitable change in culture and management. My advice would be that she plans her exit strategy on the best possible terms - http://www.bartleby.com/73/1914.html

[Meoricin]

Just to clarify, the reason you're interested in this is because you feel your wife is being taken advantage of, not because it inconveniences you - those bits were just you being flippant, right?

[Devil2575]

Meoricin said:

Just to clarify, the reason you're interested in this is because you feel your wife is being taken advantage of, not because it inconveniences you - those bits were just you being flippant, right?

Hey come on, be reasonable. The man didn't get his cup of tea and had to look after his kids...

[turbobloke]

Some comments based on experience not employment law are that firstly it's wise not to get wife in working for you, just say no. Secondly when complaining about a workplace situation, wife simply wants to vent with somebody who'll listen sympathetically rather than have somebody fix it, which is what a husband's first thought will be. This is why two positions that lack any element of a solution are occupied simultaneously i.e. the situation is intolerable to wife but there's no forcing wife out after x years. Good luck.

[RYH64E]

turbobloke said:

Some comments based on experience not employment law are that firstly it's wise not to get wife in working for you, just say no. Secondly when complaining about a workplace situation, wife simply wants to vent with somebody who'll listen sympathetically rather than have somebody fix it, which is what a husband's first thought will be. This is why two positions that lack any element of a solution are occupied simultaneously i.e. the situation is intolerable to wife but there's no forcing wife out after x years. Good luck.

There is no chance of my wife working for me, none at all, will never happen. I've told her that, in pretty much those words, and it didn't go down well, but there you go. She's not coming to work for me.

My first thoughts were, 1) if you don't like it, leave, and 2) I wouldn't dream of treating my employees in the same way, partly because I treat people fairly, and partly because I'd be worried about the consequences. The temptation is for me to book her a session with a good employment law specialist and let them deal with it, but that obviously won't help the atmosphere at her workplace and I'm not sure if she could deal with the pressure.

I learnt a long while ago that paying for the best, specialist advice you can afford is money well spent, but I'm not her and I'm not sure she would be able to follow the advice given. Or she could leave, but if she does she's not coming to work for me.

Edited by RYH64E on Sunday 21st September 09:42

[Jasandjules]

The first question is what does your wife want to do?

[RYH64E]

Jasandjules said:

The first question is what does your wife want to do?

Are you married? If so you surely understand that the chances of getting a rational, consistent answer to that question are slim to none.

[Jasandjules]

RYH64E said:

Are you married? If so you surely understand that the chances of getting a rational, consistent answer to that question are slim to none.

This I can not deny. However, when advising it is the issue uppermost in my mind.

For example, if she wants them to be nice and carry on the way it was before TUPE, she would be advised this is unlikely to happen.

If she is happy to leave them and sue, then the advice would be based upon that. And would be lodge a complaint (which would be in her name but written by a lawyer).

If she wants to stay there no matter what, then the advice would be based upon that, but would in simplest terms be put up and shut up. The reason for this is that any complaint will rock the boat and chances are they don't really want her....

[RYH64E]

Jasandjules said:

This I can not deny. However, when advising it is the issue uppermost in my mind.

For example, if she wants them to be nice and carry on the way it was before TUPE, she would be advised this is unlikely to happen.

If she is happy to leave them and sue, then the advice would be based upon that. And would be lodge a complaint (which would be in her name but written by a lawyer).

If she wants to stay there no matter what, then the advice would be based upon that, but would in simplest terms be put up and shut up. The reason for this is that any complaint will rock the boat and chances are they don't really want her....

She's only been back to work for two weeks...

I don't think it will take long for the situation to resolve itself. What's likely to happen is that they'll try to enforce some of their more outrageous working practices, I'll tell her not to comply, they'll make an issue of it, she'll leave (no doubt in floods of tears), and I'll arrange for a constructive dismissal claim. It will be nice to sit on the other side of the table in an employee dispute...

[singlecoil]

turbobloke said:

Some comments based on experience not employment law are that firstly it's wise not to get wife in working for you, just say no. Secondly when complaining about a workplace situation, wife simply wants to vent with somebody who'll listen sympathetically rather than have somebody fix it, which is what a husband's first thought will be. This is why two positions that lack any element of a solution are occupied simultaneously i.e. the situation is intolerable to wife but there's no forcing wife out after x years. Good luck.

My experience is diametrically opposite. My wife made an absolutely excellent employee/partner and were the situation ever to allow it, I would not hesitate to have her work for/with me again

[RYH64E]

Jasandjules said:

This I can not deny. However, when advising it is the issue uppermost in my mind.

For example, if she wants them to be nice and carry on the way it was before TUPE, she would be advised this is unlikely to happen.

If she is happy to leave them and sue, then the advice would be based upon that. And would be lodge a complaint (which would be in her name but written by a lawyer).

If she wants to stay there no matter what, then the advice would be based upon that, but would in simplest terms be put up and shut up. The reason for this is that any complaint will rock the boat and chances are they don't really want her....

I forgot to thank you for the post, you accurately summarise the options and when put that way makes the choice much more straightforward. Options 1 and 3 are very unlikely to happen, so it's going to be some variant of option 2. Once she's come to terms with the inevitable outcome I think the process will be much easier. I just have to remember to be 100% consistent in ruling out the option of her coming to work for me...

[turbobloke]

singlecoil said:

turbobloke said:

Some comments based on experience not employment law are that firstly it's wise not to get wife in working for you, just say no. Secondly when complaining about a workplace situation, wife simply wants to vent with somebody who'll listen sympathetically rather than have somebody fix it, which is what a husband's first thought will be. This is why two positions that lack any element of a solution are occupied simultaneously i.e. the situation is intolerable to wife but there's no forcing wife out after x years. Good luck.

My experience is diametrically opposite. My wife made an absolutely excellent employee/partner and were the situation ever to allow it, I would not hesitate to have her work for/with me again

OK you've convinced me, send her over as soon as she can start.

[turbobloke]

RYH64E said:

I just have to remember to be 100% consistent in ruling out the option of her coming to work for me...

Sound. Just headhunt singlecoil's mrs on second thoughts I'll pass on this one.

[Garvin]

In general the incoming employer must take on a TUPE'd employee on the same terms and conditions as the employee enjoyed pre TUPE unless some adjustments have been pre-agreed. This includes anything that may not be written down but have previously been custom and practice.

If, previously, all the required hours have been fixed then they should continue. If so, It appears that the 'on call' element is a significant unilateral change imposed by the employer and they are on 'dodgy' ground.

As always, the detail in the contract of employment should be carefully reviewed to ensure the employee's ground and it all depends how far the employee wants to fight.

Personally, I would remind the employer, firmly but politely, of their TUPE obligations and take it from there before getting expensive help involved. Some employers a) rely on employee ignorance of the employer's obligations; and/or b) are ignorant of their own obligations.

Good luck.

[ging84]

I think you need to get to the bottom of what is meant by being expected to be on call
either you are on call or you are not, if being on call has been slipped into the contract then you need to fight that, if on the other had it has not, then she needs to put her foot down, or for a simpler life, simply don't answer the phone

[ozzuk]

Perhaps we're all just being a bit 'blokish' here. When women tell us their troubles we want to find solutions, if they tell their girlfriends however then often they just sympathise.

Let her get on with it, mumble that she's really hard done by but she's a trooper sticking with it.

[RYH64E]

ozzuk said:

Perhaps we're all just being a bit 'blokish' here. When women tell us their troubles we want to find solutions, if they tell their girlfriends however then often they just sympathise.

Let her get on with it, mumble that she's really hard done by but she's a trooper sticking with it.

Tried that, didn't work. I started out looking at it from an employers perspective, managing staff can be a nightmare, but the more I hear the more annoyed I get. The place is being run more like a third world dictatorship than a modern workplace, and management are relying on ignorance and zero hour contracts to enforce working practices totally at odds with current employment legislation (imo, ianal). I'll get her some proper paid for advice and see where it goes from there.