Tuesday Q&As
Holidays, pregnancy, maternity pay, medicals and more. . .
Q Hi there I follow yourself on tik tok and have a question I’d really like answering, I work in a manufacturing industry and the company is closing the factory for 1 week on they’re behalf to get machines fixed and running correct. The option they are giving people is to take the week unpaid or use holidays is this correct or should people be paid for this, thanks.
A That depends. To take the week as holiday your employer must give you at least two weeks’ notice, so if it is shutting down next week it’s too late. But if they are giving you sufficient notice you do have a choice. Save your holiday for later and take unpaid leave or use your holiday. If you have no holiday remaining then you must continue to be paid as you are available and willing to work. It’s not your fault the factory is closing for a week.
Q I work in a nursery that is a registered charity. We had a meeting recently with the chairperson and was told they have thought about closing and if they do they wouldn't have to pay any redundancy as it is a charity.
A Charities are not exempt from making redundancy payments. They are under the same obligations as any other employer and if a redundancy situation arises you should be consulted and offered any suitable alternatives before being made redundant.
One thing to bear in mind, which your chairperson may be alluding to, is that a charity is not a company and therefore, if there are no assets when it closes and it can’t meet redundancy payments, it cannot rely on the Secretary of State to pick up the tab. When a limited company becomes insolvent the state can step in and honour termination payments such as outstanding pay, redundancy, notice and holiday1.
Generally, in a charity, the trustees are liable for any outstanding liabilities and the Chair and fellow trustees may find themselves picking up the tab!
Q I work for a company that after 3 years of training and successfully passing 3 svq exams a competent pay rate is reached. I have completed all of these and passed my final exam the day before going on maternity leave. My employer is now stating that I will not receive my pay increase to my competent rate until I am back at work next year? This is not written in any of the employers policies and in fact the policy states that any pay increments will be as normal and maternity leave does not alter employment. They are stating that Maternity pay is based on my pay 12 weeks before going on leave, as I said this is written no where and has taken them 5 months to tell me this, I have been enquiring since may about this situation.
Is there anything I can do?
A Firstly congratulations on passing your exams after 3 years of hard work - now you face an even bigger challenge - having a baby!
It is a shame that your employer has not clarified this previously with you despite you making enquiries, but they are not far off the mark. The maternity payment you are due is calculated thus:
Identify the qualifying week 2
Take the relevant period (This is usually the 8 week period before the qualifying week) and average the pay in that period. The end of the relevant period is the last normal payday on, or before the Saturday of the qualifying week. This gives you your average weekly pay for Statutory Maternity Pay (SMP) purposes.
SMP is payable at 90% of the of your average weekly earnings for the first 6 weeks and thereafter it is £151.20 or 90% of your average weekly earnings (whichever is lower) for the remaining weeks.
This is a statutory calculation which your employer is bound to adopt unless of course you are contractually entitled to more. From what you have said I doubt you are so, unfortunately you will not receive your enhanced pay until you return.
Q I am looking for some advice in regards to my job role and pregnancy. I am 10 weeks pregnant. My job entails working from home some of the time but others carrying out visits to properties which have been reported for noise nuisance, waste and fly tipping offences etc. I have become very anxious and not comfortable carrying out my visits due to potential aggressive people and my safety. Please can you provide any advice on regards to responsibilities my manger/workplace has. I have already informed them I will return to work after my maternity leave.
A Your employer should have a risk assessment in place in respect of pregnant employees. You can ask that they undertake a more detailed assessment when you tell them you are pregnant. They are ultimately responsible for your workplace safety. You are right to be concerned about your safety simply because of the nature of your visits.
My advice is to explain to them that you are feeling very anxious undertaking this role whilst you are pregnant. Hopefully they can move you to other, less stressful duties until you go on maternity leave. If they don’t then I suggest you raise an official grievance. If that doesn’t produce the desired result you will have little choice other than to remove yourself from the workplace and under those circumstances you may have various potential tribunal claims.
Q Can you leave a job after maternity leave? Do you need to go back at all?
A Yes, you are under no obligation to return after maternity leave. All you have to do is inform your employer that you are providing notice effective at the end of any holiday which is due following maternity leave. Ensure you provide the minimum amount of notice as detailed in your employment contract.
Q My employer won’t tell me how much holiday I have and it’s hard to work out as I have shifts in care. I have now left and they still refuse.
A You employer should keep accurate records in respect of pay and holiday. I would hope that you have a rough idea of how much you were due on termination? My advice would be to commence the ACAS pre claim conciliation procedure and explain to the ACAS representative how much you believe you are due. I’m sure your ex employer will come back with the correct figure if they believe you are asking for too much.
If they still don’t pay, obtain your ACAS certificate and start an employment tribunal claim for an unlawful deduction from pay. It costs you nothing and is a very simple process in this instance.
Q Can an employer make an employee have a psychologist assessment?
A No! Employers can’t make employees do anything. They make ask that you agree to an occupational health assessment which could involve all manner of psychological tests, but you must first give your permission to do so, and you will have an opportunity to see the report and make comments. Of course, there must be a genuine reason for asking for the assessment in the first place.
If you refuse a reasonable request to undergo an occupational health assessment, your employer may make decisions based on the limited knowledge of your condition that they have at that time and will probably not be criticised for doing so. It may be in your interests to agree to any examination.
Q What if a pregnant woman is made to do heavy lifting pulling? Can the company be held accountable?
A This is similar the the question above. Your employer has a duty to look after your health, safety and welfare - more so when you are pregnant. If you suffer injury as a consequence of an instruction to do something which is clearly putting you in danger, then in all likelihood you will have a personal injury claim against your employer.
My advice is not to let it get that far. If you are concerned, raise the issue, ask for a detailed risk assessment and act on it.
Q If an employer puts you on garden leave can they force you to take holiday in that period.
A Yes, but they must give twice as much notice as the amount of leave to be taken.
Q I work in a care home - in July I had to self isolate due to my boyfriend having covid and being contacted by track and trace - 5 days later I then got a positive test. They refused to pay me SSP because I didn’t have covid and was only isolating? How does this work.
A I believe the case home are wrong in this instance. You should have been entitled to SSP. Current guidance states:
You could get SSP if you’re self-isolating because:
you or someone you live with has COVID-19 symptoms or has tested positive for COVID-19
you’ve been notified by the NHS or public health authorities that you’ve been in contact with someone with COVID-19
someone in your support bubble (or your ‘extended household’ if you live in Scotland or Wales) has COVID-19 symptoms or has tested positive for COVID-19
you’ve been advised by a doctor or healthcare professional to self-isolate before going into hospital for surgery
I suggest you raise this further with the care home.
Q I am currently having a big issue with my last employer they are wanting me to repay all my wages they paid to me from my start date to my end date due to me choosing to not put down one of my old employers as a reference and they have dismissed me and they have said it was fraud. Do I need to replay the wages back? Any advice or tips would really be appreciated.
A That’s a little extreme! I don’t know the circumstances surrounding the exit from your old employer, but you provided your services to your last employer and you were paid for them. You do not have to return those wages. If your ex employer wants to claim you acted ‘fraudulently’ they must take a civil action against you for misrepresentation and that just isn’t going to happen. Ignore the threat.
See the gov.uk website for very useful further info in respect of claiming payments when an employer is insolvent
The qualifying week is the 15th week (Sunday to Saturday) before the week the baby is due