unfair / constructive dismissal

[SO16_Saint]

A friend of mine ( ) is having issues at work.

 

Is it legal / right for a company to:

 

* Increase criteria for non-contractural bonuses without prior warning

and

* Reduce the amount of commission paid on cases yet;

and

* Increase your target (despite being in a recession)

and

* Adding in caveats for 'long-term' employment rewards so that they're next to impossible to achieve

and

* Backdating a reduction in basic salary to the beginning of 2010 without prior warning

and

* Putting people on 'performance review' again backdated to Jan '10

 

Im not saying all of the above have happened to me, but some. And at least 3 others HAVE had ALL of the above.

 

Is there a case for unfair/constructive dismissal here?

 

:smt119

[Guest Dark Sotonic Mills]

There seems to be a good argument for constructive dismissal but! ETs have constructive dismissal cases and it is very hard to win one.

[Clapham Saint]

The back dating of a salary reduction with no notice is bang out of order IMO.

 

I understand that these things have to happen sometimes but I would have expected some notice if not consultation and would have thought there would be a case on that alone...

[Whitey Grandad]

If it's not in the contract the backdating is a no-no. The same applies to most of the others, it all depends on the contracts of employment.

[dronskisaint]

WG has his finger on it - A lot depends what is in the contract & how long an employment history your friend has -take a look at the link below. Targets are often arbitrary but the basic tems of employment (vis basic salary) aren't often to be messed with. This all depends on length of empoyment in 99% of cases - rights begin after one year, redundancy rights after two.

 

direct.gov.uk/en/Employment/.../DG_10026696

[Ponty]

A reduction in basic salary can only be applied with consent from all parties.

[SO16_Saint]

Quote from staff handbook:

 

"Your grade, basic salary, commission rate and benefits package will be reviewed on a regular basis in line with the current remuneration plan. Remuneration Structures are amended and re-issued on a regular basis."

and

"The Company reserves the right to terminate or amend any bonus or commission scheme without notice and at the Company’s sole discretion."

Looks like they have us over a barrel, saying open wide....

[Ponty]

So basically you gave consent when you signed a contract... Unfortunate.

[SO16_Saint]

So basically you gave consent when you signed a contract... Unfortunate.

 

Yes, yes it is.....

 

Ho-Hum. Anyone got any jobs going?

[Viking Warrior]

Its an interesting contractual arrangement the company have.

based on the little information provided. It would suggest that your company has you by the short and curlies. But from an employment law aspect it certainly does not seem fair or conducive to good working practice.

 

Do I take it Bridgey your working either in the insurance or finance sectors?

It sound very much the unhanded approach the Prudential take on employee relations!

[Badger]

If it's not in the contract the backdating is a no-no. The same applies to most of the others, it all depends on the contracts of employment.

 

Agree with you about the backdating of salary,but the bonus and commision (even described in the original post as 'non-contractual') are likely to be discretionary.Therefore the targets,commisions and payments can be ammended at any time.

 

Is it "right" ? Morally not, but it may well be legal.

 

As you say,depends on the contract.Also whether it is implemented depends on the bargaining power of those involved.

[Whitey Grandad]

Agree with you about the backdating of salary,but the bonus and commision (even described in the original post as 'non-contractual') are likely to be discretionary.Therefore the targets,commisions and payments can be ammended at any time.

 

Is it "right" ? Morally not, but it may well be legal.

 

As you say,depends on the contract.Also whether it is implemented depends on the bargaining power of those involved.

There might still be a case for constructive dismissal if the terms and conditions of employment are unilaterally changed significantly, e.g. halved and back-dated. There may also be a case if the correct procedures are not followed. There needs to be 12 months employment, but don't forget that the notice period comes within this so if a company dismisses somebody after 11 months the 12 months rule still applies. I'm sure there is some free advice out there from the public services.

[bridge too far]

Your Trade Union would be able to give you sound advice.

[Saint Keith]

Your Trade Union would be able to give you sound advice.

 

:badgrin: yeah of course they will, in the same way they're so helpfully giving sound advice to BA's cabin crew at the moment

 

i suspect where bridgey works has no union representation or official recognition

[Whitey Grandad]

ACAS may be worth a call:

 

http://www.acas.org.uk/index.aspx?articleid=816

[bridge too far]

:badgrin: yeah of course they will, in the same way they're so helpfully giving sound advice to BA's cabin crew at the moment

 

i suspect where bridgey works has no union representation or official recognition

 

I no longer work, but my union, Unison, has helped me out on a couple of occasions - the most recent being last summer.

 

The shopworker's union helped my daughter negotiate a substantial out-of-court settlement with a well-known electrical retailer.

 

Aah - I've just realised that you were referring to Bridgey rather than me :oops:

 

Yes, you're probably right. It's a shame that some industries don't recognise trade unions.

[revolution saint]

So basically you gave consent when you signed a contract... Unfortunate.

 

Trouble is a lot of contracts contain clauses people wouldn't normally sign up to......but they need a job. My sister is a solicitor and in her first job she was advised not to sign the contract because it contained a clause saying if she left then she wouldn't take up a position in another law firm withing 15 miles of the city centre for six months. She didn't have a "proper" contract of employment in the whole time she was with that firm.

 

In my experience though union advice tends to be pretty good. I've never had anyone "sugar coat" what they say and at least you'll know where you stand.

[Gemmel]

What type of sales is it Bridgey

[Viking Warrior]

Revolution Saint

 

Im sure if your sister had signed her contract even if there was a restricted covenant included . I think the tribunals would have found that it was too restricted.

 

I could understand if you were working for toyota and you had nissan on your door step then the restricted covenant would apply. But if you had all the

car manufacturers located in one area , then the Tribunals would say that is too restricted. Case law has proved that . I just wish I could recall the actual case. > We had to unravel that case as part of the MA in Employment law I was doing. My fellow students and I succeeded but it took a lot of liquid refreshments to come to a satisfactory conclusion!

[hamster]

Quote from staff handbook:

 

"The Company reserves the right to terminate or amend any bonus or commission scheme without notice and at the Company’s sole discretion."

 

Looks like they have us over a barrel, saying open wide....

 

I would have thought that that bit (bld) would be either illegal or at the very least deemed unfair by a Industrial Tribunal hearing. It is basically an 'unreasonable' clause to a contract.

 

One thing you simply must do 9 and it appears that you are ahead of thegame already) is to keep a details of as much as you possibly can. From previous targets, bonuses and payments to a chronological account of any conversation you have with a company representative on the subject of you T's & C's. Tribunals like detailed accounts, companies being taken to tribunal do not.

 

 

If you do decide to take the constructive dismissal route, get some free legal advice and let the company know ASAP, they will need to instruct legal teams and eventually they MAY make a cost based decision as to whether they wish to contest your claim in court. Losing these sort of claims can be very bad PR for a company, not least because if you win you are legally allowed to bad mouth them publicly.

 

My own one went to the day of tribunal and the settlement figure was pretty fair looking back, i do wish in some ways that i hadn't signed the confidentiality agreement as I would love to name the bullies and two faced bastards who made mine and my friends and famuilies life pretty horrid for a good few months. Lime eddie Murphy thiough, i'm not bitter.

 

Good luck, I mena that.

[Saint137]

Something else to bear in mind, they must be treating everyone who does the same job in the same way. You mentioned that others have had different measures applied to them, if that is the case then its in your favour in a constructive dismissal case. The contract also looks unequal to me, particularly the section about varying remuneration at their sole discrection and without notice (which effectively means that they could force you to work for nothing!).

 

Backdating a performance review is bang out of order as well, do they have a published procedure for this? Once again all disciplinary matters must be dealt with equally and fairly.

 

Your first port of call should be ACAS, they are very helpful. As others have said keep extensive notes. Employment Law is massively in the favour of the employee these days thanks to our friends in Brussels but it takes balls to go through with a tribunal.

[revolution saint]

Revolution Saint

 

Im sure if your sister had signed her contract even if there was a restricted covenant included . I think the tribunals would have found that it was too restricted.

 

I could understand if you were working for toyota and you had nissan on your door step then the restricted covenant would apply. But if you had all the

car manufacturers located in one area , then the Tribunals would say that is too restricted. Case law has proved that . I just wish I could recall the actual case. > We had to unravel that case as part of the MA in Employment law I was doing. My fellow students and I succeeded but it took a lot of liquid refreshments to come to a satisfactory conclusion!

 

You're right and to be fair we did tell her to sign the sodding thing as it would probably never be enforced but it does go to show the ridiculous things that sometimes get inserted into employment contracts.

[SO16_Saint]

Thanks for all the info and advice guys and gals - very much appreciated.

 

I will be sure to jot down as much as i can, should it ever be needed....