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Ben Jones
Ben Jones, UK Lawyer
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I have few questions regarding my workplace. I am employed

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Hello, I have few questions regarding my workplace. I am employed as production operative at The London Oil Refining Company Ltd, Astonish House. I work at this company for 3 years. All production operatives are piece rate workers and they are getting paid on monthly basis at he end of each given moth and at our last pay certain workers recognised that it is less then what we expected to have. This company is internally famous at cutting rates without telling anyone. After noticing our production manager it took another two weeks to get to explanation. Which at first was that computer system made some mistake and counted our salaries wrong, later we were told that it was certain person who is responsible for this mistake and at the end we're told that our piece rate was done wrong about 6 months ago and now they're getting it right, saying that we will get paid back for last month, but from the next month piece rate will get cut. My question is if employer can cut rates without discussing it with us in advance in any way. Please note that there are 6 lines in this company which are filling plastic containers with liquid and powder cleaners and it is only one line having rates cut. Also it is only lane which is operated exclusively with immigrants from other countries. This line belongs to unofficial list of hardest places to work in the company as certain workplaces at this line require you to do excessive performance in order to get paid what other lines are getting at the end of the day. While at some lines you can get much more, or at least more amount of money, much more easily. Also, there is a lot of pollution in the air around the line from powder being filled into tubs, lot of powder is getting into air when changing bags of powder (8-10 times a 8 hour shift), and most at times when there is a breakdown and powder is falling from the filler on the ground and spreding into air. Extraction system is very poor and we all experience breathing difficulties when something happens with line. When we opened doors next to line to get some fresh air, management got it locked and told us not to use it as pest can get inside. We were told to use disposable masks provided, which are not always available, however I don't believe they're intended for all day - every day use either. Also people are not treated same way, but that's for another story. After latest news today, fed up of what's happening at work I'm considering resignation in order to show that I disagree with company's politics and techniques of forcing people working more for less money. So I'd like to ask, is there anything I can do about this situation? If I leave it doesn't matter much to me in person, but I at least want to help my colleagues getting treated better. Help much appreciated, thanks, Jan

Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today.

Hi Jan. Have you been provided with a contract for the work that you do? If so, please can you tell me what it says about your pay?

Customer: replied 1 year ago.
Hi Ben, let me check for you

OK, thank you.

Customer: replied 1 year ago.
Honestly I'm not sure if I have ever signed any contract, however I have employee handbook which states: Contract of EMPLOYMENT: The contract of employment has a contract statement, which is to be read in conjunction with this handbook and any questions which you may have concerning either should be referred to your manager.
PAYMENT: you will receive payslip showing how the total amount of your wages/salary payment has been calculated and the deductions that have been made e.g. income tax, national insurance, pension, etc. Any querries you may have e.g. incorrect payment, shortages, error in deductions etc. should be raised with Caroline Lowery, Payroll and Personnel AdministratorDeductions: The right is reserved to deduct from your pay any sums which you may owe the company including without limitation any overpayments made to you by the company or losses suffered by the company as a result of your negligence or breach of company rules. Wherever possible prior notofication of a deduction will be given.

Thanks for getting back to me. If you have a contracted rate of pay or something has been agreed, even if not in writing, it will have contractually binding effect. So for the employer to try and change it, it would amount to a change to your contractual term and conditions.

There are a few ways in which an employer may try and make changes to an employee’s contract of employment. These are by:

· Receiving the employee’s express consent to the changes.

· Forcefully introducing the changes (called 'unilateral change of contract').

· Giving the employee notice to terminate their current contract and then offer them immediate re-engagement under a new contract that contains the new terms.

If the changes are introduced without the employee's consent, then the following options are available:

1. Start working on the new terms but making it clear in writing that you are working ‘under protest’. This means that you do not agree with the changes but feel forced to do so. In the meantime you should try and resolve the issue either by informal discussions or by raising a formal grievance.

2. If the changes fundamentally impact the contract, for example changes to pay, duties, place of work, etc., you may wish to consider resigning and claiming constructive dismissal. The resignation must be done without unreasonable delay so as not to give the impression that the changes had been accepted. The claim must be submitted in an employment tribunal within 3 months of resigning and is subject to you having at least 2 years' continuous service. You would then seek compensation for loss of earnings resulting from the employer's actions.

3. If the employment is terminated and the employer offers re-engagement on the new terms that could potentially amount to unfair dismissal. However, the employer can try and justify the dismissal and the changes if they had a sound business reason for doing so. This could be pressing business needs requiring drastic changes for the company to survive. If no such reason exists, you can make a claim for unfair dismissal in an employment tribunal. The same time limit of 3 months to claim and the requirement to have 2 years' continuous would apply.

In terms of the health and safety issues, a good starting point is to look at The Health and Safety at Work Act 1974 and related statutory instruments, which impose a general duty on employers to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all their employees. This includes a duty to undertake risk assessments and manage activities to reduce the potential of health and safety of their workers being affected. In addition, under common law an employer owes a duty of care towards its employees, the breach of which can amount to negligence.

The constructive dismissal route can also be used to challenge this and if necessary a formal report can be made to any regulatory bodies or to the Health and Safety Executive.

This is your basic legal position. I have more detailed advice for you in terms of the law on constructive dismissal and how it can apply to you here, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, there is no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you

Hello, I see you have read my response to your query. Please let me know if this has answered your original question and if you need me to discuss the next steps in more detail? In the meantime please take a second to leave a positive rating by selecting 3, 4 or 5 starts from the top of the page. The question will not close and I can continue with my advice as discussed. Thank you

Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 1 year ago.
Thank you for your answers. I'll give you good rating.

Thank you. As mentioned this could potentially amount to constructive dismissal, which occurs when the following two elements are present:

· Serious breach of contract by the employer; and

· An acceptance of that breach by the employee, who in turn treats the contract of employment as at an end. The employee must act in response to the breach and must not delay any action too long.

A common breach by the employer occurs when it, or its employees, have broken the implied contractual term of trust and confidence. The conduct relied on could be a single act, or a series of less serious acts over a period of time, which together could be treated as serious enough (usually culminating in the 'last straw' scenario).

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.

Just to make a final, yet important point, that constructive dismissal can be a difficult claim to win as the burden of proof is entirely on the employee to show the required elements of a claim were present. Therefore, it should only be used as a last resort.