Tuesday Q&As
A selection of Q&As from the past few days
Q So my issue is I have been forced to do a different job roll to what I do and originally applied for and contracted to. I got picked to do it without choice! is this aloud? I am now unhappy at work due to this. Any information or help in regards to this would be greatly appreciated.
A Basically your question is about your employer changing the terms of your employment with or without your agreement. You don’t say how long your employer has been ‘making’ you work in a different role.
At the time the change was made, I take it you accepted the change and continued to work? The alternative is you could have accepted your employer was in fundamental breach of contract and treated it as terminating your employment. So, assuming the change was implemented some time ago, then you would be deemed to have accepted the variation or change to your contractual terms.
You will not succeed in a claim if you have affirmed the new terms by continuing to work. Further, if you have less than two years’ service you will be unable to make a claim to an employment tribunal. This gives employers the upper hand in these situations. The choice is yours when the change is made, you can either take it or leave it and there is little if anything you can do.
Q I have 2 jobs one working full time and the other I’m contracted to 16hrs a week but during busy times I was working 22hrs a week sometimes more when there was no work at the main job. The part time job is only seasonal and is coming to an end on 15th November (my contract is down until 5th November but everyone been extended to 15th although nothjng official has been said to me yet.)
My question is… do I qualify for holiday pay? I’m having people say I am and others saying I’m not.
A Yes, you are entitled to holiday pay. One point to clarify though. The two jobs - are they for the same employer? If so, it will depend on whether you have two separate contracts. One full time and the other part-time. If they are separate I see no reason why you should not be given your ‘normal’ holiday under the full time contract (notwithstanding they cut your hours) and additional holiday based on the average hours you have worked under the part-time contract. If you have an overarching contract for both positions then your employer may have a right to pay holiday based on the total hours you actually work in both positions. I can’t say anymore without seeing the wording of your contract(s).
If you have two jobs with separate employers you are entitled to holiday from both (obviously pro rated if part-time).
Q Hi, can a company reduce your hourly wage for not doing overtime?
A I don’t know how your employment contract is worded, but in normal circumstances - no, particularly if the overtime is voluntary. It may be that your hourly rate is tied in with a bonus which has the effect of reducing the hourly rate if sufficient hours are not performed.
Q Just a quick question and do so hope you can advise. We are a small (3) family members and an employee business. Now the employee has now been off sick with doctors note for 5 weeks with anxiety. We have offered a day off mid week to help him with this but he is still off. Employee has been with us for under two years. Are we able to dismiss whilst on sick leave, if so how do we go about it (we are cautious because of the mental health element).
A You are right to be cautious. You may hear me say regularly that employees with less than two years’ service cannot make a claim in ordinary unfair dismissal in the employment tribunal. However, some reasons for dismissal are automatically unfair. Disability is one of them. I’m not saying anxiety is a disability - but if it is severe enough it may be, so you need to be careful how you go about this.
You will need to investigate the illness further. Don’t bother asking for a doctor’s report. From an employers perspective a GP is not their best friend. They will invariably write what the patient wants them to write or, alternatively, be fairly vague with specific answers to questions about returning to work. I suggest you arrange for an occupational health report. There are procedures to go through to obtain your employees consent to do so, but they are not onerous.
You will need to follow the recommendations in the report, but it may be that your employee will soon be able to return to work. The occupational health advisor will also be able to tell you if the illness is capable of amounting to a disability. If it’s not (and you are taking his/her word on that) then you can dismiss whilst on sick leave.
Q How long must a gap be for a returning employee to be classed as a new employee with no statutory rights?
A Continuous service is the mechanism which gives employees statutory rights. Some rights do not require continuous service: Rights to maternity leave, minimum wage, rest breaks etc. But rights such as not to be unfairly dismissed (in normal circumstances), redundancy pay and flexible working requests require a minimum period of service. A gap of a full week (Sunday to Sunday) is sufficient to break the period of continuous employment. So if an employee is dismissed on a Thursday they should not be re-engaged before the end of the following week, if an employer wishes to break their continuous employment.
Q Hi, I'm looking for some advice. I've been placed on work place adjustments, due to poor health. Can I still request a flexible request...or would my work place adjustments be the same as flexibility?
A I see no reason why you can’t make a flexible working request providing you have the necessary continuous service (26 weeks), notwithstanding your employer has altered your working pattern as a consequence of your Ill health. You may find that they have a genuine business reason why they can’t grant the request, but at least you have tried.
Q Hello I have been with my employer since Sept 2020 as a cook part time and they still have not enrolled me into a work place pension are they breaking the law is this a legal requirement for the employer?
A It depends. If you meet the earnings threshold of £10,000 per annum, are aged over 22 and under the state pension age, you should have been auto enrolled when you started work.
Q Hi i am employed and i have just noticed on my contract that my hourly rate is £13.27 but on my wage line it says my hourly rate is £12.14. I drive a company van which i get home and i have a company fuel card. I have been with the company for 4 and a half years and don’t no how long this has been happening. Is this legal?
A There is a continuing deduction of £1.13. Double check your employment contract to ascertain if you have agreed to any ongoing deductions. It could be to do with the company vehicle but that should be itemised on your payslip along with any other deductions. Perhaps it is after pension contributions are deducted?
It could be a genuine mistake and you have suffered an underpayment. Speak to your employer and find out why you receive less than your contracted pay. If it is a genuine underpayment request they rectify and give you back pay. I’m sure there is an innocent explanation though.
Q I’m hoping you can help with a query! I found out that one of my employees had secretly recorded our virtual one to ones without my knowledge. He has put in a grievance to say he was mistreated by our organisation due to a disability, which was undisclosed. What are my rights for him recording without my knowledge? The situation has really hurt and upset me and it’s made me feel violated.
A Secretly recording meetings is becoming increasingly common, particularly since virtually everybody now carries a recording device - a mobile phone. Whilst it can feel intrusive and upsetting to you they are generally permitted to be used in evidence in employment tribunals (unless they are recordings of private conversations between individuals when the subject of the recording is not present, such as disciplinary or grievance meeting deliberations).
I have sympathy with your position. Nobody likes to be recorded without their permission. One way to counter this is to have a clause in your employment contracts, stating words to the effect that permission must be granted for recording a meeting and such permission will not unreasonably be withheld. If permission is not granted or the recording is made secretly, make it clear that disciplinary sanctions could follow.
Q Does your contract still stand if it’s not been signed?
A Yes, if you work to the terms set out in your contract it makes little difference if it has been signed or not. But, certain contractual provisions need a signature to make them enforceable, such as a right to make a deduction from your pay.