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How long have you been working for this company?
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If you are employed by them as an employee and assuming you have a contract that stipulates your working hours, then you will have the right to be paid for these contracted hours.
As an alternative to dismissal (most commonly because of redundancy), an employer may wish to deal with an unexpected downturn in business by laying off employees (asking them not to come into work) or putting them on short-time working (reducing their working hours/days). The legal definitions of the two options are:
· Laid off - if an employee has been told to go home for at least one full working day.
· Placed on short-time working - if an employee's pay for the week is less than half a normal week's pay.
It is only possible to lay off employees or put them on short-time working when an express or implied contractual right to do so exists. If such a right does not exist the employer will be acting in breach of contract and that could entitle the employee to resign and claim constructive dismissal.
However, if there is a clause allowing the employer to do this, or the employee agrees to it, for example in order to avoid redundancy, certain rights will apply after a set period of time. If someone has been laid off or placed on short-time working for 4 consecutive weeks, or 6 weeks within a 13-week reference period, they would be able to ask the employer to make them redundant. There is a strict procedure that needs to be followed and more details can be found here:
So there is protection available to employees who have been laid off or who have had their hours cut. It is however important to follow the precise steps as per the link above, if the employee wishes to go down the route of requesting redundancy.
If the criteria for asking for a redundancy are not satisfied then it can still be argued that the employer's actions amount to breach of contract and/or unlawful deduction of wages. This could result in resignation and a claim for constructive dismissal and/or compensation for the money that would have been earned had the employer not breached the contract.
If the employee believes that the situation is serious enough so that they no longer feel they can work there, they can resign and make a claim for constructive dismissal in the employment tribunal. In order to qualify, there is a requirement of at least 2 years' continuous service and the claim must be made within 3 months of leaving.
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Thank you. The affected employee would initially be expected to raise a formal grievance in order to officially bring their concerns to the employer's attention and give them an opportunity to try and resolve them. If the issues are so bad that the employee can't even face raising a grievance and going through the process, or if a grievance has been raised but has been unsuccessful, then they can consider resigning straight away.
If resignation appears to be the only option, it must be done without unreasonable delay so as not to give an impression that the employer's breach had been accepted. Any resignation would normally be with immediate effect and without providing any notice period. It is advisable to resign in writing, stating the reasons for the resignation and that this is being treated as constructive dismissal.
Following the resignation, the option of pursuing a claim for constructive dismissal exists. This is only available to employees who have at least 2 years' continuous service. There is a time limit of 3 months from the date of resignation to submit a claim in the employment tribunal.
An alternative way out is to approach the employer on a 'without prejudice' basis (i.e. off the record) to try and discuss the possibility of leaving under a settlement agreement. Under a settlement agreement, the employee gets compensated for leaving the company and in return promises not to make any claims against the employer in the future. It is essentially a clean break, although the employer does not have to agree to it so it will be subject to negotiation. In any event, there is nothing to lose by raising this possibility with them because you cannot be treated detrimentally for suggesting it and it would not be used against you.
Alternatively if you do not want to leave but wish to pursue them for the wages you are owed, the employer should be contacted in writing, advised that this is being treated as unlawful deduction of wages and ask them to pay back the money within 7 days. Advise them that if they fail to pay the money that is owed, legal proceedings could follow.
If the employer does not return the money as requested, the following options are available:
1. Employment Tribunal - the time limit to claim is only 3 months from the date the deductions were made. To make the claim, form ET1 needs to be completed and submitted - you can find it here: https://www.employmenttribunals.service.gov.uk/employment-tribunals
2. County Court – this is an alternative way to claim and the advantage is that the time limit is a much longer 6 years and is usually used if you are out of time to claim in the Tribunal. The claim can be made online by going to: www.moneyclaim.gov.uk.
Hopefully by warning the employer you are aware of your rights and are not going to hesitate taking further action they will be prompted to reconsider their position and work towards resolving this.