Caterer and Hotelkeeper – 30577
Hotel in breach of legal obligations
Q I have been employed for three months by a large hotel group but I have no signed contract specifying basic hours of work. There is no apparent entitlement to overtime or time off in lieu and there are insufficient breaks. Consequently, I am working between 50 and 64 hours a week for basic pay. Please advise me as to where I stand.
A Your employer is in breach of its obligations under section 1 of the EP(C)A 1978 by failing to supply you with a statement of the particulars of your employment.
This document should include details of your "normal hours of work" and full details relating to your remuneration. If this has not been specifically agreed, then it may be implied by conduct, the industry's normal rules, etc. Once this has been established, you will know your contractual position. There is no implied right to overtime, however, and this may not have been agreed.
If you disagree with your employer or if your employer refuses to supply this statement, then you can make an immediate application to an industrial tribunal. If you are dismissed for this, then the dismissal will automatically be unfair.
At present there is no restriction on the number of hours that can be worked, although new European guidelines are in the pipeline. The most practical advice with such an employer, may be for you to change jobs because the employer is unlikely to comply with other legal obligations or enjoy the trust and confidence of the staff.
Work permit extension unlikely
Q I am a Chinese chef with a three-year work permit that is due to expire next March. Can I have it extended? I would like to get permanent residence.
A Most overseas chefs working in the UK have work permits as "keyworkers". These are people who have technical or specialised skills. Unlike other work permit holders, keyworkers are granted permits for three years only. In exceptional circumstances, the Overseas Labour Service (OLS) will grant short extensions if the employer can prove there is no one to replace the keyworker.
It will be difficult for you to show this, because there is a large resident community of Chinese in the UK. You mention you want to get permanent residence; this is impossible to do as a keyworker. Even if the OLS did extend your permit, it would not give keyworkers four years' employment. This is to prevent keyworkers from being entitled to settle after four years' employment in the UK.
Japanese chef may not be lost
QI made an application to the Department of Employment to employ a Japanese national as my head chef. The application failed because a British Embassy representative in Tokyo visited the restaurant where the Japanese national is at present working and claimed the restaurant was not of a sufficiently high standard to give the individual the experience necessary to satisfy the work permit rules. Is there anything I can do?
AThe Overseas Labour Service expects head chefs to have at least five years' experience in a high-class restaurant or hotel. It is worth asking the Overseas Labour Service to reconsider your application explaining that, in your opinion, the chef has sufficient experience to work as a Japanese chef in your restaurant. It will help if you or someone in your company has interviewed him or if he was recommended to you.
Tribunal winner will not get costs
QA former employee has just issued industrial tribunal proceedings against my hotel for unfair dismissal but I believe he has no grounds for complaint. My solicitor says that the employee cannot be ordered to pay my legal costs if I win, which I am confident I will. This isn't fair - what do you suggest?
AYour solicitor is right. Only in a few, very rare cases will an industrial tribunal order that the winning party's legal costs be paid by a losing party. It is, therefore, crucial that you obtain an accurate and realistic assessment of your prospects for success as soon as possible.
Expert advice is important in keeping legal expenses to a minimum. However, if the employee's case is so weak (and you do not give me details), then it may be possible to ask the industrial tribunal to order that the employee lodge a deposit of up to £150 with the industrial tribunal as a condition of continuing with the proceedings.
The tribunal will have to be convinced of the hopelessness of the applicant's case, and is more likely to want to hear full evidence at a proper hearing. This is particularly the case if you are legally represented and the employee is not. n
Next week's Problem Page reports on readers' questions raised at the special live session at this week's Fast Food Fair in Brighton.
