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Re: can a company not pay you if it snows
Same here Alex
I made the decision to ground my guys at 7.00am this morning for exactly the same reasons you did. Its easier to pay their wages for a day than the excess on van insurance due to an accident or sick pay for weeks due to a fall or something similar.
My previous post set out the law as it stands, and as we know the law isnt always the most logical and sensible thing in the world.
Regards
Jackal
Re: can a company not pay you if it snows
Unfortunately, in employment law, the requirement is to be paid for work done, not intended to be done, therefore, there is NO legal requirement for an employer to pay any employee if they are unable to attend work as a result of adverse weather conditions or similar impairment, unless of course the statement of employment terms stipulates that such a payment would be made. I doubt however, many such statements would include such a term generally.
Non payment for work not undertaken is not an illegal deduction of wages, as salaried positions are in effect also controlled under the Working Time Directive, therefore permission to deduct from the employee salary is not in this case needed.
Regards
Jackal
Re: what to do ?
£100 is the threshold although it doesnt necessarily mean they will keep the spares for the required 6 year period. Many manufacturers when faced with this simply exchange the product for an equivalent or better (current spec) appliance, to get around the issue.
Jackal
Re: what to do ?
It would appear KWatt is after my job! Truely sound advice here.
Ken you are right with the “the warranty is the manufacturers, not mine…” but this is an absolute mine field of problems. You will need to prove that the customer was aware of it at all times AND actually understood the condition as what is actually being attempted here is a wavier of the customers statutory rights. Its the understanding of the sale condition that causes the problem.
Here is an example of what I mean.
Retailer has 6 foot signs all over his shop saying if you buy from me, I don’t warranty the thing, the responsibility for the warranty is with the manufacturer.
Now in walks a partially sighted customer and buys a thingy me bob from the said retailer. Said retailer now needs to prove that the partially sighted customer was both aware of the warranty provision AND understood in law what they were agreeing ie a waiver to their statutory right in law. If the said retailer cannot prove this, then they will lose any claim brought against them by the partially sighted customer.
The retailer can always say they explained it to the customer but how do you prove it and that they actually understood it.
Because of the difficulties in proving this and the need to maintain the proof for the required 6 year period, most retailers don’t get involved in this sort of area, but you are very much correct in what you say it can be done.
What really gets me in the above thread is this repeated nonsense of some sort of legal 28 day special provision warranty period. Its total and utter tosh, and has no basis in law.
Regards
Jackal
Re: Invoice
Bill Hi
Assuming the invoice to be technically correct, ie the goods were ordered, received, correctly prices but simply never invoiced to you, the the statute of limitations (yes this phrase is a genuine technical one) is six years.
In other words, if no written stipulation exists, then invoices may be raised upto and inclusive of a six year period from the time the supply was made.
Again assuming the invoice to be technically correct, its the cheapest interest free loan you have ever had.
I hope this helps
Regards
Jackal
Re: what to do ?
Squadman hi
Strictly speaking the contract between you and your customer is yours to deal with, not the manufacturers. What arrangements you have to recovery of your fees in this regards with the manufacturer concerned are again yours.
So look at this from you and your customers point of view first. Under the Sale of Goods Act the goods supplied by you must be fit for purpose and of merchantable quality. Generally, in the first six months following the sale, should a defect in the product occur, it is down to you to prove the goods were fit for purpose and of merchantable quality and NOT for the customer to prove they were faulty.
After this six month period, it is down to the customer to effectively prove they are faulty.
The clue to the legalities of this case are the fit for purpose and of merchantable quality lines. NO guarantee provides for misuse, abuse or incorrect operation of the appliance.
If you are sure this appliance has been misused or abused or used contary to the acceptable norm, the guarantee and thus your liability are void and non inforceable.
In this case, it would also appear that the manufacturer has confirmed your initial findings that the unit has been dropped. Dropping the appliance is misuse, accidential or otherwise makes no difference.
From what you have said it would appear the customer has no claim in law against duties as a retailer and you do not have to refund either in part or in full any monies paid to you.
Thats the law, your reputation and your customer service are other matters only you can decide.
I hope this helps
Regards all
Jackal
Re: Being charged for training
I am glad it sort of made sense, although I know it was not what you wanted to hear.
Indeed, I believe the term commonly applied to entitlement to a share of the profit in exchange for your work, experience and qualification is salary.
Regards
Jackal
Re: Being charged for training
Spuddy et-al hi
The reason for the confusion regarding this matter is the way the law is drafted as the situation you describe is actually covered but quite separate bits of legislation,
This reply will be a lengthy one as to understand the position I will need to explain the various bits of law.
Firstly, Contracts of Employment. These don’t exist in law in this country. When people talk about these, they are actually referring to a Statement of Employment Terms and Condition.
A Contract of Employment would need to stipulate every single aspect of the employee and employer relationship and give detailed methods of remedy should any clause be broken by either party. Importantly, as law changed, each contact would need to be reissued. For example, a contract of employment would need to include all details under the working time directive, health and safety laws etc, etc. The Contract would be 100’s of pages long and need to be amended and reissued every time a minor change was made. This would be far too much of a burden on both employee and employer to do this and enforcing it would be a nightmare.
Consequently, in employment law there are two different types of term and condition. The first is an implied term the second is an explicit term and only explicit terms have to be detailed on the Statement of Employment Terms and Conditions. As a result the document is somewhat shorter and easier to manage, with far fewer amendments necessary.
Basically what this means is everything that is enshrined in law and cannot be changed is an implied term and everything that is variable in law is an explicit term. Examples are Pay Slips It is an implied term in so much as the employer must provide the employee with a detailed payslip showing the amount earnt, rate of pay and all deductions made. This is compulsory in law and neither the employee or employer can amend this.
An explicit term is for example working hours. Each employee negotiates their individual working hours, some do say 16 hours per week others 40 per week. It is a requirement to state in the Statement of Employment Terms and Conditions the working hours agreed between employee and employer which because of the variable nature is therefore an Explicit Term of Employment.
It is therefore quite common not to see in Statements of Employment Terms and Conditions any reference to the recovery of training costs because of the variable aspect of it. Do not worry about not being able to reference it in your document this is quite normal.
Now in understanding the above, there is an implied term in employment law that covers ANY and EVERY type of deduction which an employer can make from an employees wages/salary.
This implied term states that an employer can only deduct from an employees salary the following:-
1) Income Tax
2) National Insurance
3) Pension Contributions
4) Any thing else that the employee has previously and specifically agreed to in writing 7 days prior to the event.The important bit is item 4). If the employer takes anything from the employee’s salary without first gaining their express (vague and general references are not permitted) written (verbal is not permitted) permission to do so, an offence of an illegal deduction from wages occurs.
For example, if an employer deducts from the employee an amount to cover the tea fund of say £1.00 per week, without that employees written prior permission specifically to do so, then the employer has made an illegal deduction of wages and as such, the employee is at liberty to seek redress and damages through a tribunal.
Given the above, it would appear that your employer is attempting to seek your prior written approval to deduct an amount from your salary to cover the costs of the training provided if you leave within a certain time frame.
By seeking your written approval before the event, not only is this legal but in fact they are actively seeking to comply with the law as it stands now.
There is a further aspect that needs to be considered but your postings do not cover it to enable me to give a definite answer on this matter.
There is an aspect in law, as Ken Watts points out that the requirement must be fair under the Unfair Contacts and Terms Act. The test to this is whether the term or requirement is deemed to be a penalty against the employee or not, if it is deemed to be a penalty for leaving then the deduction is unlawful.
In ONeil V Strathcylde Regional Council 2006, ONeil brought a Tribunal claim against his former employers whom had deducted an amount to cover a training course he had been on whilst employed by them. ONeil had confirmed that he had signed a written agreement that should he resign from his position within 2 years of completing the course, he would be liable to repay his employers the costs of the course on a sliding scale.
The scale was, 100{e5d1b7155a01ef1f3b9c9968eaba33524ee81600d00d4be2b4d93ac2e58cec2d} repayment if resigned within 6 months, 75{e5d1b7155a01ef1f3b9c9968eaba33524ee81600d00d4be2b4d93ac2e58cec2d} if within 12 month, 50{e5d1b7155a01ef1f3b9c9968eaba33524ee81600d00d4be2b4d93ac2e58cec2d} if within 18 months and 25{e5d1b7155a01ef1f3b9c9968eaba33524ee81600d00d4be2b4d93ac2e58cec2d} if within 24 months.
ONeil argued that the charge and deduction amounted to a penalty being made against him for exercising his right to terminate his employment.
The Courts found against ONeil and for Strathclyde Regional Council on the basis that due to the sliding scale, and given that the amount was specifically fixed to the cost of providing the actual training course, they were legally entitled to recover all or some of the costs incurred. The judge pointed out that had the Council sought to recover the entire amount irrespective of the amount of time the employee had served then that would indeed be considered a penalty, which is illegal under the unfair terms and conditions act.
A similar finding was made in Giraud UK Ltd v Smith in English Law in 2007.
Unfortunately I do not know if your employer is seeking to recover the full amount from you irrespective of when you resign within the 3 year period, which would be deemed a penalty and therefore unenforceable, or if they are using a sliding scale of some sort, which would then be perfectly legal.
Finally, I take it you are undertaking work on a controlled appliance, (gas work), You should be aware your employer has no obligation to continue your employment if your registration to work on the appliances runs out, you are deemed to have dismissed yourself should you allow your registration to expire, especially if they have offered to provide the required training.
My suggestion therefore would be to speak with your employer and negotiate a mutually acceptable sliding scale repayment program if you intend to stay working within this field (not necessarily with this employer).
I hope this helps
Regards to you all
Jackal
Re: Who’s Liable
Any contract is formed when three things occur. Offer, acceptance, consideration.
An offer is made when the Work Provider asks the service company to do a job.
An acceptance occurs when the service company agree to do the job for the Work Provider.
The consideration is the amount of money agreed to do the job.
So when the work provider says to the service company please go look at Mrs Blah’s faulty washing machine and repair it up to a limit of £100 including parts labour and VAT, and the Service Company says yes to this request a contract is formed between the Work Provider and the Service Company.
If the Service Company undertakes the repair on behalf of the Work Provider for any sum up to £100 the Service Company is entitled to receive the agreed payment.
The Work Provider cannot get out of this contract legally and any attempt to do so is breach of contract and the Service Company can bring legal action as a result.
Now, if the Service Company is switched on, they can further enforce this with their own terms and conditions to the end user, by incorporating sufficiently robust terms and conditions which basically imply that, in the event the Work Provider fails to honour the warranty for whatever reason, the user indemnifies the Service Provider for the repair cost at full commercial rates. This however costs money and resources to undertake and administer.
Three or so years ago, a major manufacturer decided to reject a months worth of claims we had submitted as they wanted to vet each claim for authenticity. This was despite the fact that this manufacturer took all service requests themselves in house, vetted them to remove known finger trouble issues and then issued jobs to us with unique authorisation numbers per job once they had completed their vetting procedure.
Having warned the manufacturer that this was contrary to our terms and conditions, we proceeded to issue invoices to each of the customers whose repair we had undertaken. The manufacturer became aware of our action as a result of customer complaints and refusing to back down effectively challenged us to go to Court. They even advised the customers not to pay us directly.
We proceeded to issue the first 25 out of a possible 429 County Court Summons against the individual customers, listing the manufacturer concerned as a co defendant. This was important as it meant the manufacturer and customer would have had to argue against each other at the same time when they presented their defence.
Out of the first 25 summons, 18 customers paid (including the courts costs incurred) and then counter sued the manufacturer and the retailer for their losses and I understand they all got reimbursed in full by the manufacturer.
7 cases went to Court with me and the customer attending but interestingly not once did the manufacturer turn up. On all seven occasions we won because our terms and conditions of business were right. The resulting order was made jointly and severally against the customer and the manufacturer. The manufacturer subsequently paid all the claims in full including our costs.
Several of the district judges commented to the customers concerned that as a result of receiving the benefit of the repair, they were liable for the costs as our terms and conditions, which they freely agreed to formed a separate contract between us the service provider and them the customer.
The manufacturer decided, based on these circumstances not to chance with holding payment payment on the other 404 warranty claims, and paid us in full.
All this was undertaken under English Law within the English legal system.
Needless to say, we no longer work for this manufacturer nor do we want to work for anyone whom does not wish to honour there obligations, Work Providers should remember that when they enter into contracts they are both legally and morally responsible for the fulfilment of their end of the contract
All too often these days, certain manufacturers and work providers (not all mind) think they can impose unfair terms and conditions into the contract and get away with it. Unfair terms and conditions such as “When we get paid you get paid” or “you must fully warranty all the product after you have worked on it for a period of xx months irrespective of what you did to it”
These clauses are not fair in law and can be argued and you will win and they will lose.
The real problem is in today’s market, all too many Service Companies are willing to agree to these unfair terms and conditions and accept them when they get bitten further down the line. We service providers are in this position is as a result of divide and concur mentality we have all been subjected to over many many years by the every domineering bullying manufacturers and work providers.
If we all got together and refused to work for such industry bullies under such conditions then this industry would stop shafting itself and become a reasonable and responsible place to work. Unfortunately it only takes one small set of idiotic and selfish service providers to upset this situation.
Regards all
Jackal
Re: Refrigeration ‘interim personnel certificate’
Indeed but I support and trust 100{e5d1b7155a01ef1f3b9c9968eaba33524ee81600d00d4be2b4d93ac2e58cec2d} WTA so thats my port of call
Jackal
Re: Refrigeration ‘interim personnel certificate’
K Hi
Thanks for the link.
I will forward to two application forms with a cheque on Monday once back in the office. Can you confirm these are to be sent back to Kilmanock?
Regards to all and have a great weekend
Jackal
Re: How Do I subscribe to certain topics
Thanks guys,
I didnt have it set correctly in profile so hopefully now I can get what I need.
Many thanks guys
Jackal
Re: MFI Turmoil
Hi all
They must prove the debt exists not you disprove it.
They will need copies of the orders, and invoices relating to it to be able to prove it in court. DO NOT help them by providing the paperwork they very clearly don’t have.
I would not bother with it further until the summons arrived on my desk, I have far more important things to do then help these people.
Trust me, if they had a case against you, you would have had the summons by now.
To comply with the law they only had to serve written notice on you of their intention to instigate legal proceedings and then three days later, issue the court summons.
Jackal
Re: Refrigeration ‘interim personnel certificate’
Dales hi
This is brilliant news. I have two guys whom were going to use DASA for this interim certificate but we will now use you.
Let me know ASAP when the forms are available for download so we can get this sorted.
Well done Whitegoods Trade Association.
Jackal
Re: a bit fun
£700 in £50 notes
Was some of the takings for a pub where the landlord enjoyed his own hospitality rather too much and used the machine as a safe overnight. He forgot to tell the cleaners whom washed the bar towels the next morning.
Before commencing work, my engineer jokingly agreed with the said landlord to 50{e5d1b7155a01ef1f3b9c9968eaba33524ee81600d00d4be2b4d93ac2e58cec2d} of whatever he found but it was quickly retracted when the Landlord realised what had happened.
As far as I remember, he dried most of the notes and banked them a couple of days later.
Jackal
