Thank you, I'm not a trade union rep, this person is a close friend of mine. Going back to the breach of contract for reduction in hours, what would the remedy be in your opinion please, just for an idea of what he could be entitled to?

No it has no clause in it to say that they can vary hours, but it could be more a breach of contract? What if he refuses to accept the changes and they really want to make them?

No, it was a six hour contract but over the years they consistently increased to 18 hours, (he is an instructor). Would cutting his hours to 12 give him a redundancy situation? Previously he has had his new hours confirmed in court as his established hours as they had been worked for well over two years. Thank you for all your help!

Hi, this person with the potential 33.3% of hours reduction is an employee with a contract, but the other people are doing the same job as him since years and think they should be contracted employees too, not self employed. There seem to be a number of different contracts going around, I have seen as and when, casual worker, part time and full time, all for the same job. The self employed though were give "consultancy agreements" to sign which basically absolved the company from any responsibility; this is what made them start digging into their possible rights and now they have an ET1 filed, awaiting the ET3.

I have another question! (There is a lot to sort out with these employees!) In a case where an employee has had his hours reduced by 33.3% and the employer refuses to acknowledge that that would be a redundancy situation if the employee did not wish to accept the reduced hours, what remedy would the employee have? He does not wish to resign as that may jeopardise his rights. Does he merely work under protest and whilst working, put in a claim with the tribunal that in effect his employment has been terminated due to redundancy, or is there some other course of action that he should take? I add that he has been an employee for 18 years. Many thanks again, I really appreciate all your help.

Thank you for replying Emmzzi, but these particular people don't have written contracts, they are self employed but should be contracted employees as they are doing exactly the same job since many years as other contracted employees.

Sorry, I think this is a simpler way to explain my question: If an employee is required to work on a pre-arranged basis to take teaching classes as set out on timetables published quarterly in advance naming the employee as the teacher and the employee is obliged to make herself available to teach the class and for whatever reason at the last minute the employer says I do not wish you to take a class is the employer liable to pay the employee for the class aborted? Many thanks

Hi Emmzzi, Thank you very much for replying, this could be a problem as they are treated as self employed casual workers but over the years have established hours - they have an ET claim going through to get their employment status confirmed as contracted employees. I have seen a contract for one of the "as and when" employees and it just says that on bank holidays they need to be available if they are required to work and that they don't get any extra remuneration. The self employed instructors are paid holiday three months in arrears so if they can't work during refurbishment or bank holidays then they don't get paid and are subsequently paid less holiday pay. Thank you

Hi again everyone, Just a quick question, if an employee works a regular session on a Monday night but every Bank Holiday the session is cancelled due to early closing, does the employee have a right to be paid what they normally earn that day even if the buiding is shut? Also, if a studio is closed for maintenance for example, the employee who would normally take the class is not paid even though the closure is again no fault of theirs, so in my mind they ought to be paid their normal, established hours even if it is a Bank Holiday or closed for maintenance. Would this be a claim for breach of contract for unpaid wages in the county court? Many thanks in advance!

Thank you for your message, I think as you say it is better to leave it alone, it's easy to let indignation cloud better judgement - thank you again for keeping us on the straight and narrow!

Thank you for your help, my only concern is that untruths have been stated to plant concerns in a claimant's mind, but reference to the Judge not having confidence in him is maybe something the Judge should be made aware of? Many thanks again

Hi there, I have a quick question, my representative is helping others now. In response to a fair question as to why a current employee (and new claimant) was given a new casual contract to sign despite being there under the same condtions and delivering the same type of work as me (a contracted employee) since many years, this is the response made by HR (they character assassinated our legal representative): "During that hearing he was told by the Employment Judge that one claim which he had prepared should not have been brought (this claim was struck out by the Judge) and a second claim had little prospect of success claim- He was told the second claim would be subject to a deposit order and that his client could be subject to a costs order requiring his client to pay the Centre’s legal costs in defending the claim. This is obviously not what we want and does cause us to question the accuracy of the advice you are receiving. Thirdly, Mr X has been the subject of quite critical comments by an Employment Judge (namely Employment Judge X) for the manner and way in which he has conducted litigation at recent hearings in respect of two other individuals. From what we have observed we believe he does not have the confidence of a resident Employment Judge and that reinforces our view that he is not an appropriate person to attend a meeting on your behalf." The respondent seems to be attacking the legal representative in an open way to an employee rather than wishing to discuss with that employee the issues between them. How would one approach dealing with such comments either with the Judge or the Respondent, bearing in mind that these comments were made in a private preliminary hearing. Separately the coments made are a distortion made of what happened and other comments were made which were totally baseless and untrue. Many thanks!

Hi Steampowered, thank you for replying, I think the best thing to do is to wait for the Judge's reasons and see how he sums it all up, but it seems that he was concerned that the protest was not made in writing. I will keep you posted

Thank you for replying! To clarify there are a few parts to the claim: The main claim is to have her contracted employee status confirmed as even with a part time contract stating "Part Time Employee" at the top, the employers are still calling her an "as and when casual worker". Over the years she established a fixed pattern like I did - the situation is exactly the same for her as it is for me. The next large part of the claim is that she, like me, has a huge amount of unpaid holiday pay due as they didn't update their calculations when there were increases in statutory entitlement (since 2004). They have already admitted to around a third of it, of which instead of paying her at the time of discovery, they waited until the preliminary hearing and the Judge has enforced upon them an interim payment order for this amount (it's quite large - a few thousand). As you suggested she put in a claim for unpaid wages for the hours she lost, as she states that she did not agree to the changes they made in October and as these hours had built up over a number of years so should be deemed as being her normal hours. This is the part of her claim that the Judge is requiring a deposit for as she did not make her objections in writing. The employer is saying that as she worked the new hours, she must have accepted them since it was last October and now it is August, but they had been giving her more hours and when it stopped in January, she waited until it seemed there would be no more and that is when she asked for her contract. She filed a claim in May - within three months of the rediscovery of her contract (this was signed in 1997 - it had never been updated since then - it had been local government but the employer changed to an independent provident society, and then again last year to a charity all run by the same people and under the same name, they just never bothered to tell any of us what they were doing - we only found out by doing some digging on Companies House). Back to the claim and one thing I should add is that she was phoned while she was off work grieving to be given the news of her hours cut, and that was it, there had been no three stage consultation with a grievance procedure, in fact she was completely unaware that they operated one. To me this seems that they were aware of her protest, as they would not be giving her more hours unless she had objected to the previous cut, but it is bothering me that because she was greatly bereaved over the passing of her father, she did not think to put her objections in writing, she was simply talking to them and asking for more in a polite way as they had been threatening to her. One thought I had was to suggest that she pursues the employer for this part of the claim in the county court, but if the ET Judge says it has a slim chance of success is this a bad idea? Would she be liable for a large sum for costs to the employer if she loses? The value of the breach of contract in that situation is less than £5,000. I have no idea how to start a claim in the county court, but have quite a bit of experience in the ET - I've got a fifth hearing in a couple of months time!

Hi there, Just a quick update, my colleague's claims as set out above are all going ahead to be heard at a full hearing. The only part of the claim that could be a problem is the fact that she works under protest but did not ever put it in writing, so the Judge is saying that if she wants it to be heard she needs to put down a deposit as it has a slim chance of success. I would like to give her some advice please if possible, these are the circumstances: She was off work for three weeks last year in August because a family member passed away. When she got back to work she was told that her hours were going to be cut in October as she was too hard to cover. She was distraught and objected but was told if she kicked up too much of a fuss she would have no hours (she was told that she was a casual worker). She said that losing her relative was bad enough but to lose her job on top would have tipped her over. So because "they felt sorry for her" she was given back one hour in November, then another in January. She was happier as it seemed that she was claiming back her original hours but the giving of hours stopped in March. That month she asked for her contract as she thought she had signed one way back in 1996 but couldn't remember was was on it and she had lost her own copy. It stated that she was a part time employee "as and when required". She had built up regular hours on regular days and was really a contracted employee as she does the job as me and I had my status confirmed at the ET earlier this year as a contracted employee. So she is trying to make a claim for the lost hours during the changes that were enforced upon her. But because her protest was not in writing, even because of these circumstances, do you think the ET would still find it hard to believe that she was working under protest? Many thanks in advance

Thank you Steampowered and Ericsbrother very much, as ever this is such great information, I will keep you posted on developments

Hi Steampowered, Thank you very much for your reply, I have a further question: Does the ET have the jurisdiction to confirm that an employee's terms in accordance with their existing contract should be changed to reflect the terms of a comparator, where the male colleague enjoys enhanced benefits in respect of notice period, contractual holiday pay and contractual sick pay. This would be in respect of discrimination because of sex. Separately, I'm not sure if I made it clear that her contract stated expressly that the employee would be automatically enrolled into the local government superannuation scheme, this did not happen (it didn't say anything about employee contributions being required). The employee is still employed but the employer is in breach of contract, does that mean the only remedy is through the civil court for this breach or does the ET have any jurisdiction in such cases where it is set out in the employee's contract? Unfortuately there is a male colleague who also is being discriminated against with regard to terms and conditions, and I guess as there is not a protected characteristic he will have no remedy? Many thanks again!

Sorry about the long winded post above, in a nutshell my question is what are the remedies for a breach of contract when the employee is still employed but working under protest? This is in respone to have bonus payments withdrawn and hours reduced. The employee has 20 years service. Many thanks

Can anyone help me with regard to a colleague's situation? My first question relates to her non admittance to a local government superannuation scheme and it is to see if she can acquire retrosprective admission. Does the Employment Tribunal have jurisdiction over these matters? I helped her fill out her ET1 but the ET3 came back saying that it was submitted that the ET did not have jurisdiction to hear these matters. Would the answer to the previous question be different if the employee's contract expressly stated that on commencement of employment they would be admitted to the local superannuation scheme? Working under protest/breach of contract: Around a year ago she had her normal hours (she had set hours week in week out since years) reduced because was told that she was a "casual worker". Like me she had mislaid her contract as she started many years ago (she got a copy of her contract after the reduction in hours). When she looked into this matter recently she discovered that like me - I had my status confirmed as contracted recently at the ET, she should also have been treated as a contracted employee so my question is: Where an employee has not accepted changes in their working hours and is working under protest, can the employee bring any action for breach of contract even though they are still working? Is it too late to go under protest if you have gone along with changes because you are told misinformation about your status, but once you confirm that you believe your status is other to what you are being led to believe, can you then go on working under protest? And finally... Can a parity claim be made in respect of a female employee not on the grounds of gender? But on the grounds that she is being treated unfairly compared with other employees doing "like" work? Many thanks!

Thank you once again for all your help (I will be making a contribution when the money finally arrives). Yes it was a preliminary hearing and at the hearing we were successful in resisting strike out/Henderson and Henderson, with a claim for statutory holiday pay which is going forward for the hearing in September. We did not anticipate the judge's problem in an employee being granted 4.5 weeks holiday when statutory holiday entitlement was four weeks in 2002. Nor did we consider a doubling of this entitlement after five years as a reward for continuous service as being "wholly at odds with the workplace reality" as stated by the judge as one of his reasons for not allowing the contractual holiday pay for going forwards. At the preliminary hearing we produced a letter which had been given to us by the respondent stating that contractual holiday pay entitlement based upon our interpretation arose from a mistake in the contract. This was an admission that the respondent has a contracted holiday pay scheme for contracted employees. It was when the judge was asked whether he would allow a claim on the grounds of parity to go forwards that he said "you would have to make another claim for that". The admittance by the respondent of a subsisting con holiday entitlement for contracted employees was during discussions between us in private as well at the preliminary hearing. The issue therefore is that I should be entitled to some contractual holiday pay which by definition is going to be higher than statutory holiday pay. We are currently seeking by way of the Freedom of Information act from the original employer in 2000 as to contractual holiday pay entitlement that was then being grated at the time We are also seeking by other means evidence the judges assertion that the entitlement claimed was "wholly at odds with workplace reality". From your previous helpful advices, it would seem therefore that an appeal lodged against the judge's decision to strike out contractual holiday pay may be the route to go, unless you have any other view about amending the ET1 now that I have more fully explained what happened at the preliminary hearing and the fact that the rights for contractual holiday pay notwithstanding difficulties in interpreting the contract nevertheless do exist and it would not be just or right that this could be pursued. Many thanks again

Hi again, The reasons after the preliminary hearing are through now and explain why the judge struck out the contractual claim: the problem with the claimant's interpretation, and my reasons for preferring the respondent's submissions are the following:- the words "18 hours leave" are plain English words with the plain English interpretation of 18 units of 60 minutes each. I can see no reason for interpreting 18 hours as 4.5 weeks. there is nothing in the contract that expresses any pro rata or proportionate approach under the rules of contractual interpretation require me to apply a term to that effect, there being no uncertainty or ambiguity to resolve. the claimant's submission would lead to the absurd result for which she claims, namely that full time employees in this one employment are entitled to nine weeks paid leave per annum, the result wholly at odds with workplace reality. I find that the claim for contractual holiday pay has no reasonable prospect of success (Rule 37) and it is not in the interest of justice that time be taken with it. It is struck out. At the preliminary hearing the respondent confirmed the holiday entitlement of contracted employees, it is 5.83 weeks after five years service, then 6.83 weeks after 10 years service. If I amended the claim to show the calculations according to these figures, would the judge refuse to allow the ET1 to be amended (since he struck out contractual and left in statutory holiday pay) unless I apply for a reconsideration alongside it? Many thanks again

Oh one more thing, do you know of any instance where someone may have had a similar contract, where the holiday pay was outlined in hours rather than days? It's proving that 36 hours to four hours work per week equated to nine weeks for 40 hours work per week which is where the judge is getting confused as he has never heard of a contract like it. Many thanks

Hi again, I am waiting for the Reasons from the preliminary hearing so I can be more accurate, but thanks to your great insights I will go down the amendment of the ET1 route. Oh and yes it's a two day hearing, I think it was to encourage the respondent to settle up out of court, they admitted to owing a certain amount and the judge ordered them to pay that as an advance, so he isn't best pleased with them. I will keep you posted Many thanks again

Thank you for your reply, the judge definitely said "you will have to put a new claim in then" but he was getting a bit ticked off as he said 75% of unpaid wages claims are settled out of court, so far we have had two preliminary hearings and a two day full hearing set just for holiday pay! My employer used to be a public body so I am thinking if I got the rates back then, maybe the judge would keep in the contractual claim to be heard if I applied for a reconsideration once the Reasons come out. I have calculations for contractual and statutory holiday pay, but the judge seems set on granting only the statutory holiday pay as he is reluctant to accept the nine weeks on the contract. I could try and amend the ET1 but would that need approval from the employer as well as the court? It was also filed in early March. Thank you again

http://www.hmrc.gov.uk/manuals/spmmanual/spm10270.htm Check this out too: http://www.bevanbrittan.com/articles/Pages/TwojobSonesicknessabsenceonedismissalseptember2011.aspx