Employment Law Update. Employers named and shamed! Dodgy references, long term sickness and a few Q&As
Email: tim@tcsbusinessservices.com
Web: www.tcsbusinessservices.com
Employers ‘named and shamed’ for paying less than minimum wage
The Government has named 191 companies who failed to pay £2.1 million to over 34,000 workers. The latest round of naming and shaming occurred last week and topping the list of offenders was John Lewis PLC.
Every worker in the country is entitled to the minimum wage, but on occasion they are brought below the threshold for a number of reasons. In the 191 case listed, 47% had pay deducted for things such as uniform expenses and training which took them below the minimum wage. 30% did not receive sufficient overtime pay, so when their working hours were calculated they were below the threshold.
All the named businesses have had to pay the arrears and face hefty financial penalties of up to 200% of the arrears, capped at £20,000 per worker.
References
As an employer, should you provide a reference on request or refuse?
This is a fairly straightforward area of law but if you get it wrong it can be costly.
Let's start from the simplest position to take. Firstly, there is no legal right to give a reference* so an employer can have a blanket policy which states - 'We don't provide references'. That's it, end of.
But......if you are going to follow this line you MUST NOT give any references, otherwise you may hold yourself open to allegations of discrimination and/or breach of contract. Treat all employees the same and there can be no comeback.
Where a reference is requested and you elect to provide one it must be factually correct. In this circumstance you have an obligation to both the new employer and your ex-employee. Painting a picture of a hard working employee who has never received a disciplinary warning or taken a day off sick, when in reality he/she was quite the opposite, will leave you open to a potential claim from the new employer. Likewise, if you denigrate the employee to the extent that they are unlikely to be offered a position when, in fact, they were a good worker could leave you open to a claim for damages and/or discrimination.
So be careful, and if in doubt get the reference legally checked over before sending it on. And one final thought - always ensure that the request is genuine and that you are not breaking any GDPR rules by disclosing the information.
* There is an exception for those working in the financial services sector. Those holding senior positions or directorships must provide references for the past 6 years of work history. under FCS/PRU rules
Keeping in touch with sick employees
Many employers are either reluctant to contact long-term sick employees or simply believe they are not allowed to. Many times I have come across the situation where a sick employee is upset because nobody has contacted them and they feel isolated.
It is good practice to keep a check on the general welfare of an employee. You should make contact initially by phone or post and then agree the method to make future contact, such as by text or email. Some employees will be reluctant to discuss their specific illness so keep to generalisations and don't delve into their medical condition. You're enquiring about their welfare, nothing more. Don't hassle the employee for a return date as that will undoubtedly put them on the back foot and question your reason for contacting them. Don't discuss work specifics, just let them know how the business is doing and keep them up to date with any developments.
Can you visit their home?
There's nothing to stop you doing so but don't turn up unannounced. Agree the visit with your employee first and if they are reluctant, why not suggest an alternative venue?
What happens if they refuse all contact?
As with any long term health issue you are entitled to ascertain whether in fact your employee will return so I suggest you obtain an occupational health report. You will have to contact them first to obtain their permission. A recorded delivery letter will suffice, notwithstanding they have requested no contact.
In the News
High-flying £100,000-a-year lawyer, 31, loses harassment case after boss pointed out she was single and childless when he asked her to work abroad as judge slams 'hypersensitivity' where every 'clumsy' remark at work ends in legal action. Full story
Nurse wins appeal after she was sacked for refusing to work weekends because she had to look after her family. Full story
A selection of TikTok Q&As and emails
Q 'Can my employer refuse to give me my contracted hours back after maternity leave ends?'
A No! You are entitled to return your current job under your contractual terms and conditions when you return from your ordinary maternity leave (26 weeks). If you take additional maternity leave (a further 26 weeks) and it is not reasonably practicable for your employer to permit you to return to your job you have a right to return to another job which is both suitable and appropriate for you under the circumstances. You should not return to a job that has diminished hours, rights or terms and conditions.
Q '90% of the time it's short staffed at work and we don't get a break on a 12 hour shift. Stuck infront the pc working for all that time without a break. How would breaks work when not enough staff?'.
A There are some sectors where the statutory break is not applicable such as security guarding, the military, emergency services and domestic servants. But if you are one of the many millions doing a 'normal' job then you are entitled to an uninterrupted statutory 20 minute rest break away from your work station, if you work continuously for 6 hours or more.
It is a statutory right and your employer is under an obligation to provide it. Refusal of a rest break can land your employer in a tribunal so I suggest you raise the matter by way of a grievance, and if it is not resolved, then take it further.
Q 'The organisation has a new seating plan where I am placed on the ground floor. I service 6 members of a team who are placed on the floor above me. I am expected to go up and down the steps with heavy lever arch files. I could be working on 5 files in a day. I am expected to go up and down with these. I have a health condition, connective tissue disease and rheumatoid arthritis that affects my joints and muscles.
I am in constant pain, feet are often swollen and constantly out of breath and feel the heat from my knees, hips and ankles.
My workplace is aware of this. I have asked them to move me with the team I service. There are 2 free desks which my employer can sit me on. However, they choosing to be awkward and not allowing this change instead are asking my to return to my previous position. It is not the job itself causing me trouble, it’s the constant going up and down with heavy files.
Is there any thing I can do? Do I have the right to request?'
A Firstly, you have a health condition. If you can establish the condition has a substantial and long-term negative effect on your ability to do normal daily activities then you have a disability under the Equality Act 2010.
Given what you have said I suspect you have a disability within the meaning of the Act. That would then trigger a duty on your employer to make 'reasonable adjustments' to your working conditions. What reasonable adjustments they should make depends on the size and administrative resources of your employer. Two desks are available on the same floor as the team you service so it would make sense to move you there, thereby complying with the duty to make a 'reasonable adjustment'.
You say your employer is not allowing this and asks that you return to your previous location. My advice would be to escalate this by way of a formal grievance. Explain in writing the difficulties you are having and suggest the solution - a move upstairs. Ultimately, if your employer dismisses your request your recourse is to the employment tribunal for disability discrimination. You can make the claim whilst you are still employed and you are protected from any detrimental act as a consequence of making the claim.
Q 'Is it illegal for a 16 year old to be working at 5.00am?'
A Yes and possibly no! As with most things to do with employment law there are exceptions. The default position is that those aged 16 or 17 must not work after 10pm or before 7am.
But, they can work until midnight or from 4am onwards if it's necessary in the following types of work:
advertising
agriculture
a bakery
catering
a hospital
a hotel, pub or restaurant
newspaper delivery
post delivery
retail
But only if there are no adult workers available to do the work and working those hours will not have a negative effect on the young person's education or training.
Q 'I've worked for a company less than a year, am I still entitled to maternity pay?'
A Yes, providing you have been employed for 26 weeks up to the 15th week before the expected week of childbirth, earn at least £120 per week on average and provide the correct notice and proof of pregnancy (Form MATB1 or doctor/midwife letter).
You are entitled to maternity leave from day one of employment but will not qualify for maternity pay unless you satisfy the conditions above. Instead you may qualify for a Sure Start Maternity Grant of £500 and/or statutory Maternity Allowance.
Q 'Hi what to do if another employee who works with me doing same job and same hours is earning a more than me a week. Been here longer than this person also I do more if I’m honest'
A This is a common complaint. At the end of the day your employer pays you at the rate you agreed when you were taken on. He/she is entitled to pay someone more if they choose, even if you work harder than your colleague. It could be down to their qualifications or experience that they receive a higher rate.
However, there are occasions when pay disparity results in workers being placed at a disadvantage because of their gender. On the subject of equal pay there have been significant well publicised cases where female workers have been paid less than their male counterparts, whether it is the same job, a job of equal value or one that has been rated equivalent under a job evaluation scheme. This is prevalent in the retail industry.
So if the other employee at work is a different sex and doing the same job then there may be scope for an equal pay claim. Many employers actively discourage employees discussing their pay with their colleagues for this very reason!
I hope you find these emails informative and worthwhile. If you have a friend/associate or colleague who you feel may benefit from my regular bulletins, please feel free to share using the 'Forward' button below.
If you simply forward from your browser and the recipient unsubscribes, it will unsubscribe you!