Welcome to the Tuesday Q&A Newsletter. Today I’m opening it up to all subscribers - not just because it’s Christmas and I’m feeling generous, but because I wanted to give non-subscribers a preview of what you are missing by not signing up to the full version.
Since I launched the paid subscription, in only a couple of weeks, we have had 20 Q&As, an interesting case of the week looking at an unfair dismissal, which resulted in a nil payout from the tribunal, and much more besides.
To get the latest employment law news, hint, tips and Q&As click below to subscribe now.
Q i’m having issues with staff taking days off saying it’s taking 72 hour plus for pcr test results to come back when i know others are testing at same time and getting results back with in 12hrs. What can I do? Can I ask for a screenshot of the result?
A You are entitled to ask for a screenshot. Tell staff it's to satisfy yourself that they are negative. If they refuse, there is not a great deal you can do, but if you suspect they are being untruthful when telling you they have waited 72 hours for a result, start a disciplinary investigation and at the investigation meeting ask them for proof. If they refuse, without a very good reason to provide you with evidence you can draw a negative inference from the refusal and proceed to a disciplinary.
Q Hi I've been in the same job for a little over two years I was told to work through coivd as they would give me a full time contract they never give me a contract but did other people contracts when I asked about mine all I got was they lost the paper that had my name on it then I had an accident at work and put a claim in and they let me go what can I do.
A Firstly, if you had worked for over two years you have full employment rights, particularly the right not to suffer unfair dismissal. Being sacked because you made a personal injury claim would, in all likelihood, be unfair. You may also have a claim for discrimination if you were not provided with a full time contract and other staff were, if the primary reason was because of one of the protected characteristics, such as race, sex, age, religious belief etc.
I suggest you seek legal advice asap. You have limited time to make a claim. Speak to ACAS in the first instance.
Q Hi I follow you on TikTok and I have a question. I work in a nursery and a child tested positive for Covid so I was told to get a pcr by my manager I have now been told that the day I went for the pcr is a sick day is that right because I wasn’t sick and was told to go for one I’m just asking if this is right.
A If you were instructed to go during working time you should be paid as normal. You were not isolating, so not entitled to sick pay.
Q I recently applied for the subject leaves due to having an autistic child and my wife has gone to depression because of his behaviour. My employer is giving me holidays only subject to stepping down from my role (demotion). Resultantly I resigned. Please advise this decision is correct?
A Providing you fit the eligibility criteria for requesting unpaid parental leave you should be granted it. More importantly, you may be suffering discrimination by association. Clearly accepting the holiday leave on condition that you be demoted is a significant detriment entitling you you resign and claim constructive dismissal.
I suggest you take independent legal advice with a view to making a tribunal claim. Don’t delay as strict time limits apply, so start the process now by starting the ACAS pre-claim conciliation procedure.
Change of job role
Q Hello Tim. I’m changing role in my company and they told me they can’t pay the remaining holiday days I have. Instead I have to take my holidays under my new role. Is that true? Thank you in advance.
A 20 days of your holiday can’t be converted to pay unless your employment is being terminated (there is an exception for the 8 days additional holiday granted by the UK government). Simply moving to a new role in the same company will not have the effect of terminating your employment, so your employer is correct in this instance.
Q What are the rules when an employee doesn’t clock out from a shift. Can the employer refuse to pay for that shift or only pay until last evidence of employee in work? Or must the employer take the employees word that they worked the hours they were supposed to?
A There are no set rules in this instance. However, if you make it a requirement that employees clock on and off for their shifts, and failure to do so may (or will) result in disciplinary action, then your employee(s) should comply. Simply withholding pay because they failed to clock off may potentially result in an unlawful deduction from wages claim against you.
Of course, if you have good evidence the employee left the workplace early, then undertake a full investigation, question the employee and witnesses and determine whether you should hold a disciplinary. If it is established that he/she left early you are under no obligation to pay for their work after that time.
Q Looking for advice on overtime pay when on holiday. I work a basic 45hr week I then work on average 9-10hrs A week overtime. From what I understand I should still be receiving my average overtime when on holiday? Any advice would be greatly appreciated.
A Yes, if you work regular overtime the holiday calculation should include this. Your employer should calculate you weekly rate based on the previous 52 weeks. If no pay was paid in any week, count back another week, so the rate is based on 52 weeks in which pay was paid. You can count back a maximum of 104 weeks to find these.
If you have less than 52 weeks of pay, use the average pay rate for the full weeks you have worked.
Q I want a partial pension. My employer won't allow me to do this as they say it will cost them money. How does this work? Surely it's my pension so I'm entitled to it and if I cut my hours they can use those hours elsewhere?
A It may be that the needs of your business are such that it cannot accommodate the reduction in your hours. Partial pensions are common in the public sector, but there must be agreement from your employer to do so and you must meet their eligibility criteria. I suggest that if you are not happy you write a formal grievance and set out why you believe they should agree to partial retirement - similar to a flexible working request.
Q I started my job in may 2021 and fell pregnant few months after. I am now just under 29 weeks pregnant and originally requested my mat leave to start on 21st Feb 2022. The issues in the work place all started with cctv installation in the office without prior notice and then adjusting colleagues computers to get a clearer view of myself on camera to other minor issues within the work force which I’ve felt that I have been blamed for.
Due to these current ongoing situations at work - it has caused me stress and anxiety - under doctors / midwife advice they have suggested to go on early maternity leave. So I emailed my employer yesterday asking if I can start my early mat leave due to stress and under gps advice. I have been sent a response saying the following:
We are surprised to hear that you are suffering from stress as you have never indicated this previously. Can you advise as to what the stress is related to please? As you are aware you have given us notice to commence your maternity leave early. As you are now therefore varying that date can you provide a doctors paper to support this please?
A As I understand it you can start your maternity early if you’re off work with an illness related to your pregnancy, and this happens in the 4 weeks before the week of your maternity start date - so you could start earlier. You have provided enough notice. You could ask for a fit note from your GP which suggests you start maternity leave early as a consequence of an illness related to your pregnancy, but that being said, I'm not aware that it is a legal requirement that you must provide medical proof.
They are 'surprised to hear you are suffering from stress'. Not the words of a supportive employer, particularly during pregnancy. They should tread very carefully, particularly given your current state of health.
My advice would be to turn this around. Your employer has asked what your stress is related to, so tell them - but tell them by way of a formal grievance. Set out details about the cctv and other minor issues you have had. Often minor issues culminate into something far bigger as appears to have happened in your case. Explain too that you feel aggrieved that you should produce a doctor's note to confirm illness in respect of your request for early maternity leave. They should then investigate your grievances.
Remember you should not be treated any differently as a consequence of your pregnancy. If you are there is a potential pregnancy discrimination claim. Maternity Action have a great website which may be of help.
Q My friend has worked for Royal Mail for over 30 years, his son died in a car crash and he became understandably depressed so had to have some time off work .. after a while his employer told him to take a years pay and leave the business - so he did even though he didn’t really want to be he was depressed and vulnerable at the time.. now he’s struggling to find work again because they ask in his interviews why he left his last employment and he has to tell them he was depressed so then they don’t want to take him on ..
Would this be classed as unfair dismissal as they’ve not really taken care of him considering the mental state he was in due to his son passing and this has also had a knock on affect towards new employment opportunities?
A I suspect your friend signed a settlement agreement when he left, particularly if he was paid a years’ salary. The effect of the agreement is that he is prevented from taking any action against his previous employer in the employment tribunal.
If he hadn’t signed an agreement, he would have to show that he was coerced or improper pressure was put on him to leave. I can’t really say much more unless I know the full circumstances surrounding the termination of his employment.
Q Hi there, Can a company change your holidays to make you use a quarter of your holidays every quarter of the year, with a two month blackout in Nov/dec? Leaving only oct for one of the quarters? It doesn’t work for my personal choice or the best of my work year schedule. Our contract does say the company has the right to make reasonable changes to holidays from time to time. What would be the best approach to argue refusal?
A Sadly you can’t refuse. The company has the right to dictate when holidays are taken providing they give sufficient notice. You could write and ask that they make an exception for you and provide compelling reasons for persuading them to do so, but at the end of the day your employer will have the final say.
Q I have a question that my company fail to answer . I work in a huge retail chain, I’ve been there 13 years . I recently came back from maternity to discuss my availability as it’s flexible work store however , I wasn’t allow a certain availability, but I know in the store other Co workers have what they want which does not fit the business needs , they never work weekends, when they clearly said all part time have to work 1 in 4. I’m with a union, is it worth challenging why others have what they want but I can’t?
A Yes it most certainly is. Flexible working was brought in as a family friendly policy, to help people such as yourself. I suggest you put in a formal flexible working request, set out the position with other workers receiving what they wanted and explain how they could accommodate your request. Get your union on it - that’s what you pay them for!
Q In jobs where you are required to be in 15mins before your shift starts or not leave until 15mins after your shift ends can you claim those minutes as paid?
A Yes. If you are paid hourly, time spent on the premises counts as working time and so should be paid for. If you are on a monthly fixed salary, providing your pay is still above the National Minimum Wage, even if you add on the 15 minutes every day, then it is unlikely you will will receive additional pay unless your contract states otherwise.