matchmaker

Some on here might be able to help. A former colleague started a new job a few months ago. She, along with every other employee, has keys for the premises. She has now been told that she (plus the other two most junior employees) is expected to be "on call" in case the burglar alarm is activated, so that she can go and check out the premises and reset the alarm. There is no mention in her contract of employment of any requirement to be "on call". Can they make her do this?

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Alan

"Darth" - Black Magic Octavia VRS with Forge DV, BMC CDA induction kit, Milltek cat, Supersprint exhaust, Xenons, ESP, cruise, parking sensors and Kumho 225/45/17 tyres Been to Star sufficient bhp & ample lb/ft All time low - 7.8 mpg

ap0gee

According to the DTI webpages on such matters:

The contract of employment

A contract of employment is an agreement entered into by an employer and an employee under which they have certain mutual obligations.

If no contract of employment exists beforehand, one will come into existence as soon as an employee starts work and, by doing so, demonstrates that he or she accepts the job on the terms offered by the employer. The contract need not be in writing, unless it is a contract of apprenticeship (employers should note however that a contract of apprenticeship may be found by the courts to be implied even if it is not in writing). Its terms can be written, oral, implied or a mixture of all three.

Implied terms might include those that are too obvious to be expressly agreed - for example, a term that the employee must accept reasonable instructions from the employer - those that are necessary to make the contract workable and those that are established by custom and practice in the particular organisation or industry concerned.

Employed or self-employed?

Whether someone is an employee working under a contract of employment or a self-employed person working under a contract to provide services depends upon the true nature of the agreement entered into by the parties. If the employer has a duty to provide work, controls when and how it is done, supplies the tools or other equipment needed to do it and pays tax and national insurance contributions on the worker's behalf, then it is likely that the worker is an employee. If, on the other hand, the worker can decide whether or not to accept work and how to carry it out, makes his or her own arrangements for holidays or sickness absences, pays his or her own tax and national insurance contributions and is free to do the same type of work for more than one employer at the same time, this points towards the person being self-employed.

The fact that a worker is described (either by himself or herself or by the employer) as being self-employed does not necessarily mean that this is actually so. Neither does the fact that the worker does the job on the employer's premises or from his or her own home determine the issue. The important question is whether or not the worker is genuinely in business on his or her own account. If a dispute arises in which employment status is in doubt, this can be considered as a preliminary issue by the employment tribunal or the court concerned, taking into account all factors relevant to the case.

Written statement of employment particulars

All employees taken on for one month or more are entitled by law to be given, within two months of the date the employment starts, a written statement setting out the main particulars. This statement will not necessarily cover every aspect of the contract, but will constitute important evidence of the principal terms and conditions. Further information about the right to a written statement can be found in Written Statement of Employment Particulars (PL700).

Variation of contract

The contract of employment is binding on both parties. This means that it is unlawful for one party to vary the terms and conditions in the contract without the agreement of the other. The contract itself may, however, include provisions allowing the employer to make important changes - for example, requiring the employee to move to a different place of work or to undertake a different type of work. In the case of a change covered by a provision of this kind, there is no variation of the terms and conditions in the contract and the change will be lawful.

It is always open to either party to seek to renegotiate the terms and conditions with the other. A variation may be made by agreement between the employer and the employee. It may alternatively result from a variation by collective agreement, where the contract itself (either expressly or by implication, such as through long standing custom and practice) provides for this. A collective agreement is one made between, on the one hand, an employer or an association representing employers and, on the other, a trade union representing employees.

The contract may provide for its terms to be varied by a particular collective agreement even if the employee is not a member of a trade union (so that, for example, collectively negotiated pay agreements can be incorporated into all employees' contracts). An employee's written statement of employment particulars must specify any collective agreements that directly affect his or her terms and conditions (including, where the employer is not a party, the identities of the parties).

If a variation of contract affects one or more of the terms and conditions required by law to be covered in the employee's written statement of employment particulars, then the employee must be given written notification of this. The notification must be given as soon as possible, and at any rate no later than one month after the variation is made. (Again, further details can be found in Written Statement of Employment Particulars (PL700).)

It should be noted that if an employee finds a variation of contract unsatisfactory but nevertheless continues to work under the new terms and conditions without making his or her objections known to the employer, he or she could after a time be deemed to have implicitly accepted it and it would then become incorporated into the contract.

Refusal by employee to authorise variation

If the employer wishes to vary the terms and conditions of employment and the employee, having been consulted, objects to the variation, then the employer may decide to terminate the contract by dismissing the employee. As usual in the event of dismissal, the appropriate statutory or contractual notice (or pay in lieu of notice) would have to be given and any other contractual obligations relating to the termination of employment would have to be fulfilled. (Further details of notice entitlement can be found in Rights to notice and reasons for dismissal (PL707).) The employer would then be free to offer the job on different terms and conditions either to the dismissed employee or to another applicant. If the employer dismisses and offers to re-employ all employees in a particular category he will not have to go through the new dismissal and disciplinary procedures which apply from 1 October 2004 (see New legislation for resolving disputes in the workplace). However, if he only selects certain employees for dismissal for re-employment, he will have to go through those procedures and a failure to do so will make the dismissals automatically unfair. In the case of a dismissal, the employee does not need to go through the grievance procedure.

If the dismissed employee considered the employer's actions to have been unfair, he or she would be entitled to make a complaint of unfair dismissal to an employment tribunal - provided that he or she had completed a qualifying period of at least one years' continuous service. Such complaints must normally be made within three months of the date the employment ended. However, from 1 October 2004, the time limit for claims will be extended in specified circumstances connected with statutory dismissal and disciplinary procedures. The tribunal can also consider a complaint made outside the three-month time limit if they believe it was not reasonably practicable for the employee to have made the complaint within it and that it has been made within such further period as they consider reasonable.

The tribunal would consider all the circumstances of the case in deciding whether or not the dismissal was in fact unfair. These would include the employer's reasons for wishing to vary the terms and conditions - overriding business considerations, for example, might make the dismissal fair - and the employee's reasons for opposing the variation. (Further information can be found in Unfairly Dismissed? (PL712). and Fair and Unfair Dismissal (PL714).

If an employer attempts simply to impose a variation of contract on an employee without the employee's agreement, this will be a breach of contract. The employee may have various means of redress available in law. These are described in the following sections of this document.

Breach of contract claims by employees

If an employee suffers a measurable financial loss because his or her employer has breached the contract of employment, or any other contract connected with employment, then the employee may be entitled to seek damages by making a breach of contract claim.

The normal forum for pursuing such a claim is a county court or other civil court. A claim may however be made to an employment tribunal instead if it:

arises or is outstanding on the termination of the employee's employment; and
does not relate to one of the following special categories:
personal injury;
a term requiring the employer to provide living accommodation for the employee or imposing an obligation in connection with the provision of living accommodation;
a term relating to intellectual property (including copyright, rights in performances, moral rights, design rights, registered designs, patents and trademarks);
a term imposing an obligation of confidence; or
a term which is a covenant in restraint of trade.
There are a number of factors that a dismissed employee making a claim for breach of employment contract may wish to bear in mind in deciding which of the two alternatives - employment tribunal or civil court - to use. For example, the employment tribunals provide a generally speedier and more informal means of redress than the civil courts for the resolution of employment disputes, and their procedures have been designed to make it unnecessary for the parties to incur the cost of legal representation. On the other hand, employment tribunal claims for breach of contract must be made within three months of the date on which the employment ended (or, if that is not reasonably practicable, within such further period as the tribunal considers reasonably practicable), whereas civil court claims may be made up to a much longer time limit of six years from the date on which the breach of contract occurred. Another consideration might be that employment tribunal awards for an employer's breach of contract are subject to an upper limit, currently £25,000, whereas civil court awards may reflect the full amount of the damages suffered by the dismissed employee.

Breach of contract claims by employers

If an employer suffers a measurable financial loss because one of his or her employees breaches the contract of employment, or any other contract connected with employment, then the employer is entitled to seek damages by making a breach of contract claim.

The normal forum for pursuing such a claim is a county court or other civil court. A claim may be made in an employment tribunal instead, but only if it is in response to a breach of contract claim that an employee has already made to an employment tribunal and that has not since been settled or withdrawn. In addition, the claim:

must arise or be outstanding on the termination of employment of the employee against whom it is made; and
must not relate to one of the special categories listed above in respect of employees' claims.
If the dismissed employee withdraws his or her breach of contract claim after the employer has made a claim, the employer's claim can still be considered by the employment tribunal.

Employment tribunal claims by employers must normally be made within six weeks of the date on which the employer (or other respondent) receives from the tribunal a copy of the dismissed employee's originating application (or, if that is not reasonably practicable, within such further period as the tribunal considers reasonably practicable). Civil court claims may be made up to a much longer time limit of six years from the date on which the breach of contract occurred. Employment tribunal awards for a breach of contract by an employee are subject to an upper limit, currently £25,000, whereas civil court awards may reflect the full amount of the damages suffered by the employer.









Confusing maybe, but hope it helps!

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devonutopia

If its not in the contract, she doesn't have to do it, IMO. However if the contract stipulates something like "blah blah blah and other tasks as requested" then it's more tricky.

Everyone in this small office is a keyholder, but only the 2 much more local people are on call if the alarm goes off. No worries about single female and potential robbery, as the police get here quicker as the alarm triggers them too straight away.

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Moose

I assume they have had suitable training as to what to do when they turn up on a 'call'?

Oh and an easy way to get out of it is to say when you get a call 'I've get a bit to drink and so cannot go out'.

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heresmo

So this would work in practice how? exactly?

Do the keys have a very clever alarm attached? Does a "senior" (you mentioned this was told to be an obligation on junior members) call a junior and ask them to check it out? How would the senior have found out? How would one know if burglars (potential assailants) were still on the premises? If you'd gone away for the weekend, problemo... etc etc

I cannot see where this comes from in terms of an obligation nor how it could possibly be enforceable - and if it could what the consequence of non-compliance would be???

That said, I've been a keyholder, was available, and happy to go knowing police were on the site so little likelihood of personal injury. I was under no obligation however.

A contract clause? I know nothing.

Mo

matchmaker

No and no - "get a taxi and charge it to us"

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Alan

"Darth" - Black Magic Octavia VRS with Forge DV, BMC CDA induction kit, Milltek cat, Supersprint exhaust, Xenons, ESP, cruise, parking sensors and Kumho 225/45/17 tyres Been to Star sufficient bhp & ample lb/ft All time low - 7.8 mpg

Moose

The alarm goes off and the alarm company call you to say that the alarm is going and can you attend. If you can't, then the next person on the list is called. Some places also call the police, but that's getting quite rare now.

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Goochie

Easy - I was a key holder (I lived 3 miles away) but on the one occasion security rang at 11pm, I said "sorry, I've had too much to drink" and they called the MD from 30 miles away

Moose

Thats how I got out of it, drink (or claim to have had a glass of wine or 2). The alarm company didn't know I lived 2 minutes walk away. Also, for personal safety, I wouldn't do that. If you get a taxi to the company and it is being broken into, you're there on the phone to the police in blatent full view of the offenders. I wouldn't even go there, though I was lucky where I was as it next to a dual carriageway, so we could just drive past and if we see anything dodgy, call the police from around the corner out of sight.

If you do get called out, think of your personal safety first and do not tackle the offenders yourself

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LittlePaul

Sounds like a monitored alarm, so linked to either the police or an alarm company anyway - so they woudlnt eb alone in checking it out.

Asides from that, if it isnt mentioned int he contract, then there'll undoubtedly be a clause saying "other duties delegated by management" as devonutopia said.
Course, if they are taking the ****, then she just adds up the amount of time she's on call and takes that out of the number of hours she's employed for (which is in her contract).

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greg2302

If the alarm only goes off once in a blue moon and the police are already there, and she's just got to open up and check the place over, I don't see what the problem is. Especially if there are 3 "keyholders", it's not like she's going to be waiting in at home on a Friday night just in case she gets called out.

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