Plenty of Q&As this week covering the whole spectrum of workplace issues.
Q Hi my boss has brought back percentages and said we all need to be 80% + is this legal and can you get the sack for being below that % p s I’m a mechanic and not every job goes according to plan, thanks in advance.
A When you say your boss has brought back percentages, I take it it is something you were previously subject to? Firstly, you need to look to see what your contract says - there may be a clause in there about performance. You may also have a workplace policy in respect of performance, so check to see if there is one.
It’s unlikely you will get the sack for dropping below 80%, but it’s more likely you will be ‘performance managed’ - i.e. a meeting and warning about improvement. You should also be offered help and/or extra training if your performance is not up to standard. Dismissing you simply because you don’t reach 80% would probably leave your employer open to a claim of unfair dismissal (providing you have at least 2 year’s service).
Deductions from Pay
Q I am wondering if you can help me? I took a payout to leave my previous company earlier this year. However when looking at my final wage slip recently and comparing it to money paid they do not match. For example final wage slip total was 30k including all deductions. Actual amount paid 25k. Is this correct or am I owed 5k?
A Without actually seeing what the deductions are for or your final wage slip I can't say if it is correct. However, if it is incorrect you may be out of time to claim in the tribunal - you have three months less one day to make the claim. If you are out of time you can claim for breach of contract in the County Court.
Changing terms and conditions
Q As a result of a team member leaving, my employer is changing my commission plan without consultation. My monthly targets are doubling and my commission rate is halving from 11% for every £ sold to 5.5% for every £ sold. I will therefore be earning less and don't want to accept these changes. Do I have any options? Can I refuse to accept the new terms and if they fire and hire would I have a claim?
A Check your contract - your employer may be able to alter your commission rate but doubling targets and halving commission appears excessive to say the least. Factors such as how long you have been on the current commission/target structure will have a bearing, but on the face of it I would assume this is going to result in a significant drop in your pay.
First thing you must do is raise a written grievance; you do not have to accept the new terms. This would appear to be a fundamental breach of contract entitling you to resign and claim constructive unfair dismissal. In order to succeed in such a claim you must not delay in accepting the breach, so when it is imposed or when you are told it will be imposed, that is the time to act.
Q Hi I've got a question about sick pay, Ive just had an operation and my sick note started on that day but my company has told me I have to give up the 1st 3 days before I claim ssp, Is this correct?
A Yes. The days you’re off sick when you normally would have worked are called ‘qualifying days’. If you’re eligible, you’ll get SSP for all your qualifying days, except for the first 3. These are called ‘waiting days’. See SSP at Gov.uk for more detailed information.
Pay in lieu of notice
Q What happens if an employee’s continuous service is less than 2 years on the effective date of termination, but if you include a month’s notice for which PILON was given that would mean the employee has 2 years service?
A To be sure of this answer I would need to double check your clause. Pay in lieu of notice (PILON) has the effect of terminating the contract on the date the notice was given rather than at the end of the notice. If there is no PILON clause in your contract then the company are in breach and your termination date is at the end of your notice period - and in your case you would have two year’s service.
Pregnancy risk assessment
Q I'm on unpaid leave due to covid 19. I'm 21 weeks pregnant and I'm a care assistant. Due the a outbreak of covid in the home I was asked what I want to do stay working there or unpaid leave. Its obviously unsafe for me to work there as we went from 2 people to 12 in less than 7 days. Also staff are getting covid. I'm being paid My annual leave and the rest is unpaid. Do I have any rights to be paid?
A Yes you do have the right to be paid. Firstly, as you are pregnant and you have informed the care home of your pregnancy, the operator of the home has a statutory duty to carry out a workplace risk assessment. Following the assessment you should be advised what options are available.
Your employer could alter your working hours to reduce the risk - probably unlikely in your situation. They could offer you alternative work on no less favourable terms and conditions than you currently enjoy. Finally, and probably the option available to them here, is to remove you from the workplace altogether to eliminate any risk to you.
Where your employer has fallen foul, is firstly, asking you to take your holiday and then asking you to stay away from the workplace on unpaid leave. That is discriminatory.
If your employer believes the only way to protect you (or you consider it is the only way you will be protected) is to stay away from the workplace, then you should be suspended on full pay for a long as is necessary to avoid the risk.
I suggest you explain this to your employer by way of a written communication asap.
Terms and conditions of employment
Q After the UK furlough scheme ended in October the company I am working for added the remaining staff on a 50% sallary, asking us to work as part time for 3 months with the possibility of extension. Unfortunately the current work volume I am been given goes well above the 50% time allocated and even though this has been raised with management and their approach is “take it or leave it”. Is there anyway I can challenge them? What proof can I gather? After the 3 months of 50% sallary do I have the right to ask for redundancy?
A So, you have agreed as a temporary arrangement to work part time for 50% salary for three months. If you have this in writing - great, but if not - don’t worry. Keep a record of all the hours you work and if it is over and above that which was agreed on a temporary basis, calculate the sum owing and ask for it.
At the end of the three month period, if your employer refuses to provide full-time work as you are contractually entitled to, you have the option of either continuing to work-part time or resign for a fundamental breach of contract. You can then make a claim to an employment tribunal.
Always correspond with your employer in writing, text or message, even if he/she prefers to reply verbally.
Statutory Sick Pay
Q I work 12 hours per week. I’m waiting for surgery and hopefully due to go into hospital sometime in January. Regarding sick pay, I had a look at the government website but it says that statutory sick pay is only payable for people who earn a minimum of £120 per week .. and unfortunately I don’t. After my surgery I will need to be be off work for around 12 weeks so I was wondering if I could claim for anything else.
Also I’ve never received a contract of employment, I have asked my boss on several occasions for one and each time he said “he would sort it” but never has! if I keep asking he could make life difficult.
A Sadly as you do not qualify for SSP I think your only option is to claim Universal Credit. In so far as the contract is concerned, see my last Q&A newsletter about contracts. There is a template letter you can send to your employer requesting one.
Deduction from pay
Q Good afternoon and I hope your well, My employer has stated to do a job over two days and milk it due to the lack of work and the employer is getting paid day rate. He now states that he will be taking money out of my wages due to sitting about. What can I do?
A I take it he’s getting paid for your services? Whatever the rights and wrongs of his instructions, you are entitled to be paid ‘whilst at work’, so politely ask him to pay you your full rate of pay - if he doesn’t it’s an unlawful deduction. The only problem I foresee is that if you have less than two years service, he could simply give you a weeks’ notice and find someone else willing to do the job for less.
Q I have been employed for over 5 years with the same firm. They have now asked me to complete a health questionnaire. Most of which I cannot see any relevance to my work. Do I need to fill this in?
A Sometimes employees have disabilities the employer is unaware of and completing a questionnaire is a good way of identifying what, if any, adjustments an employer should undertake in order to make the workplace more accessible/comfortable. This could be happening because your employer is carrying out a review of policies and procedures and the HR department has considered it a good idea!
At the end of the day you do not have to disclose any medical history or conditions, so it’s entirely up to you. If you do complete the questionnaire I would be minded to satisfy myself that the sensitive personal information contained within is retained in full compliance with GDPR.
Q I have a 40 hour contract but also work regular over time in the form of 24/7 call out, usually 1 or 2 weeks every 2 months. (Electrician). Should my holiday pay or allowance be based on just the 40 hours or the total amount of hours I work?
A As it appears to be regular overtime then your holiday should be based on the average number of hours over the preceding 52 weeks, so it will inevitably be more than the holiday based on a set 40 hour week.
Employment start date
Q My girlfriend has been given employment by a Elderly Care company. They put her through courses, made her do tests and fill out many forms and applications. They even did a DBS check. However, they now won't give her a start date. What can she do about this?
A Did your girlfriend have an offer of employment letter? If so it may or may not state when she should start work. If the company keep delaying the start date there may be a claim for a breach of contract and she could claim the equivalent of her notice pay (1 week). If she has never been given a start date then sadly there is nothing she can do. You can't force an employer to employ you. If nothing else she has received free training.
Transfer of business (TUPE)
Q Hi there just hoping you catch this email on off chance to get advice on this. My employer has sold his business (hotel) and the new owner is gave us job application forms to fill out as employment will start a fresh with him on Monday 15th November so would that mean my old employer should be paying us long term staff redundancy? What happens to all they years of service? We are to get paid all holidays due from old employer but I haven't left my work so to the tax I'm basically starting a fresh job.. thank you for your help
A This is a classic example of one business to another and is protected by the Transfer of Undertakings (Protection of Employment) Regulations (TUPE). The Regulations stop employers starting afresh when a business is sold - at least as far as the employees are concerned.
This means your service with your old employer, your terms and conditions of employment and other rights and liabilities are automatically transferred to the new employer. So:
You do not have to reapply for your job, all the years of service with your old employer still count, your holiday entitlement is transferred over (you should not be paid for it) and your pay and hours of work should remain the same.
Deductions from pay
Q Was wondering if you could help me. My employer has withheld over £300 from my final wage. They said 5 hours were deducted as one of the jobs I did was 'shabby' although that was 5 weeks before pay day and there was no mention of this until I got paid. The rest they said they are keeping until I hand in the diesel receipts. I handed every receipt in to the correct person, but he was off for 2 weeks, and now they claim they are missing 5 receipts. Can they withhold this money?
A NO! If your employer is not happy with your work he/she should use the disciplinary or performance procedure. There is no right to deduct from your salary for this. Furthermore, you’ve handed in the diesel receipts - it’s their problem if they can’t find them.
Demand payment immediately, failing which contact ACAS and then make a claim for an unlawful deduction from pay.
Q Hello I'm sure you get lots of messages so I'll keep this brief. I work for a security company but as self employed which means they getting me to work more then 48 hours a week...I don't want to work that every single week but when I tell them that they just say they can't find any cover.
A Two points. Firstly, you can’t really complain as you are self-employed - there is no mechanism by which you can do so.
Secondly, are you genuinely self employed? This is worth looking into, as attaching the label ‘self-employed’ is not necessarily indicative of the relationship between you. If you are an employee or a worker you will gain significant employment rights, including maximum working hours per week.