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Jenny, Solicitor
Category: Law
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Experience:  Qualified Solicitor specialising in Employment Law and general legal matters. Please start your question For Jenny Only
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My son has recently resigned from working at a large college

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My son has recently resigned from working at a large college in England. He was initially working as an agricultural instructor and then taken on to be responsible for the sheep flock. Last year at lambing time things were so difficult with the then farm manager he didn’t put in his overtime hours. This year when he submitted his overtime hours (a new farm manager in place) they refused to pay them. We have since discovered that as well as lambing time, instructing as part of his contract, he was also asked to cover for another member of staff who was off sick. ACAS have said we should take it to a tribunal but we are considering Constructive Dismissal as he has been under extreme pressure. We appreciate that it is very difficult to prove and so we are looking for advice. I can give more details if it would help. I have been corresponding with my son’s former employer as he is dyslexic and so a reasonable adjustment. I can send the emails if it would help.
JA: Was this wage-and-hour issue discussed with a manager or HR? Or with a lawyer?
Customer: You are the first lawyer we have approached. I had googled and think I am correct in saying that the employer has to ensure that the minimum wage is upheld. I think with a rough calculation Daniel was working for £3.20/hour. There was an animal welfare consideration and Health and safety as some of the times there had been no one else to supervise junior inexperienced students or anyone to be present with the livestock when lambing. Acas tried to liaise with the college and they did offer something but wanted to deduct £1500 as he had not finished his teacher training. I have said that it was unreasonable to expect him to be pro-active in completing his teacher training when he was being asked to work so many hours. They have not replied to that email.
JA: Does the workplace operate with employees, freelancers, consultants, contractors or with unionised employees?
Customer: I would think possibly a mix of the above. We have heard of another person who has been unpaid but my son thinks he may have been a contractor. Sorry I need to get more information on that.
JA: Anything else you want the lawyer to know before I connect you?
Customer: Would it help if I emailed the correspondence with the HR dept
Hello my name is***** am a solicitor and will be helping you with this query .How long did he work there for?
Customer: replied 3 months ago.
He started in Aug 2016

Does he still work there and has he raised a grievance?

Apologies I have just seen you said he resigned. Did he raise a grievance prior to resigning and what outcome are you seeking here?

Customer: replied 3 months ago.
He did raise the grievance and they just said they would not pay the overtime due. We have then enlisted the help of ACAS who will help with a tribunal. Before going to Tribunal I thought I would try to engage with the HR dept. I can send the correspondence. Daniel felt very frustrated and had endured two difficult farm managers and so handed in his resignation. He stopped working last week but they are still due holiday pay so unsure if they add this as a sum of money or if technically he is on holiday.
Having got a fuller picture of how much work he was being asked to do, His Dad who was a Team leader in Agriculture at a Scottish College before retiring suggested he may have grounds for Constructive dismissal so that is my main question, is this an avenue worth exploring?

He can only claim constructive dismissal if he was an employee (I believe this is uncertain) and he gave the employer the opportunity to put matters right before resigning. If he resigned with immediate effect he will struggle even if he was an employee.

He has the right to be paid all outstanding hours and holiday pay.

Is there anything further I can help you with?

Customer: replied 3 months ago.
He was an employee..... and he raised his grievance with ACAS on the 20th of May after trying to speak to HR and his farm manager.
Customer: replied 3 months ago.
ACAS thought the HR had agreed to half in money and half off in time off in Lew then I believe this offer was either withdrawn or it may have been a verbal offer from the Farm . The college are saying overtime had to be pre-authorised. Part of the difficulty was the amount of extra teaching he was being asked to do which meant that his usual shepherding work had to run into overtime hours. Daniel was unaware that overtime hours had to be pre-authorised.
Customer: replied 3 months ago.
sorry Farm Manager

Was there anything in his written contract about the overtime?

Customer: replied 3 months ago.
I think it was more about his contracted hours and that included every second weekend. Daniel was going to be checking the contract. I need to follow that up, sorry I landed in A & E after my old farm cat attacked me when i tried to attend to an injury it had! HR were taking the stance that his overtime claim this year was much higher than last year but due to the difficulties he was having with the previous farm manager he had not submitted the hours (he hates confrontation)
This is my last email to HR which i have received no reply to:-
Thank you for the information sent yesterday.We have realised that whilst Daniel worked similar overtime hours in 2018 he made no claim for these hours as he has in this current year. Daniel realises that this has been to his detriment. It should be noted the breakdown in the rapport between Daniel and then farm manager, Matthew Haig made it very difficult so discussing overtime hours with him became impossible so Daniel decided not to pursue the matter. The farm manager should, in fact must have realised the hours Daniel was working and made no attempt to ensure Daniel was paid accordingly. As, it should be said, is the case for this years lambing time where Ed Parish also must have known the hours that Daniel was working and made neither any attempt to cover them himself or delegate any other member of staff to cover.Daniel has described his usual contracted hours were 9.7 hours daily usually starting at 8am finishing around 5.30-6pmLambing time started in the 3rd week in January for approx 4 weeks.The main flock then started lambing the last week in February to the middle of April. The two lambing weekends being the 1st & 2nd weekends in March, where he worked longer than the contracted 9.7 hours but again made no claim for overtime.With the early flock the students were expected to cover day and night. Daniel was covering the supervision for 12 hrs during the day and course tutor, James Bickerton, supervising the 12 hours during the night. This was 2.3 hrs per day overtime worked by Daniel.In the second lambing the 3rd yr students were paid from 7pm to 7am. They were responsible for the 1st years students on duty. The 1st year students on days did not arrive until around 8.30am and left at 4pm for busses. Daniel started at 7am taking the report from 3rd year students and finished at 7pm, when the 3rd year students returned. Contractural Daniel starting at 7am he should have left at 4.45pm but to ensure cover for health & safety and animal welfare Daniel continued working, supervising the 1st year students arriving at 5pm until the 3rd year students arrived at 7pm. If these hours required to be pre-authorised then surely that is the failure of management to recognise the gap in essential cover. It should be noted that the 3yrd year students did not always arrive at 7pm prompt and this resulted in Daniel being delayed passing the report over but again did not claim this extra time.Daniel was asked to cover for Chris Mann when he went off Sick before Christmas. When the college resumed in January there was extra work required to prepare for the Ofsted inspection.Daniel was asked to cover for Mr Mann’s practicals as he had not returned for sick leave. Daniel said to Alan Brown that he could only cover the one week as he had lambing commitments imminent. However students were still being sent and he was forced to do teaching and work overtime to cover the shepherding tasks he couldn’t cover when he was teaching students. This went on for approx 3 months, 4 x 3hr practical sessions per week (12hrs a week) in addition to the 3 x 3 hr teaching sessions he was already doing for his own job description. So effectively he was doing a full time teaching job plus a full time shepherding job at the busiest time of the year for a shepherd. It should be noted the extra four sessions of practical work had to meet the requirements of the curriculum and not necessarily the needs of the shepherding work.CET Certificate in Educational training....Daniel was informed to take time away from the CET at lambing then catch up after lambing time however there was no time tabling as had been previously, no offer of cover to release him from his shepherding duties to attend. Given the fact that he was already working excessive hours to expect him to have been pro-active on this matter is wholly unreasonable.Interestingly the college was paying students with less experience than Daniel £10/hour, Daniel only receives £9.28 for overtime. This also seems unreasonable.I think all in all Daniel has shown himself to have been a dedicated shepherd and teacher of the next generation of young farmers. His former lecturer recognised his special qualities when he was “head hunted” for the role of instructor at Reaseheath College, it should be said not once but twice. You have his picture on your website where he looks so happy.He has been treated badl

In honesty he is clearly owed money and has been treated badly.

You have already started discussions with ACAS, ask them to start early conciliation for unlawful deduction from wages (unpaid holiday and and overtime) and for constructive dismissal.

If he resigned because he was treated so badly he had no choice then there is a prima facie case for the Employment Tribunal to consider on merit.

Do you have any further questions about this please?

Customer: replied 3 months ago.
Thank you for your help and advice. We needed a legal viewpoint. He loved his work and his flock of sheep...whilst he didn't own them he treated them as if he did. Had he been treated fairly he would still be working there.
Thank you for your help

no problem at all, all the best with it. Please take the time to rate my answer before leaving the site , so that I can be credited for my time. Thank you and do come back to me in the future if you need to.


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