Welcome to today’s Q&As which is FREE to all subscribers. I hope you find some interesting and helpful answers covering a number of work related questions.
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Disciplinary hearing
Q. I have a disciplinary and have been told I can bring a trade union rep or work colleague with me. I don’t get on with other employees and Im not a member of a union. Can I take a friend? TIA
A. The law is quite specific in this case. You are only permitted to bring:
a work colleague
a workplace trade union representative who's certified or trained in acting as a companion
an official employed by a trade union.
However, any employer worth their salt should allow you to bring a companion from outside the workplace, such as a family member or friend if you explain your reasons for doing so. Don’t expect them to agree to legal representation as they would probably like to keep lawyers out of workplace disputes as long as is necessary.
If you have a disability your employer has a statutory duty to make reasonable adjustments. Allowing a support worker with knowledge of your disability to accompany you to the hearing would be justifiable adjustment.
Time off for childcare
Q. Hi my partner has to isolate because she has tested positive for covid but I don't show any symptoms but still have to stay off work because of childcare issues does work still have to pay me?
A. If you are fully vaccinated and are not showing symptoms you do not need to self isolate. You are remaining at home to look after the children. You should ask your employer if they will grant you emergency time off for dependents or alternatively parental leave.
There is no statutory right to be paid for either type of leave, so your only option, if you want to be paid, is to take the time off as annual leave.
Bank holiday entitlement
Q. I work term time only, the Queen has given an extra bank holiday while we are off, those who work full time get this day however we have been told thay they will not be honouring the extra day holiday for those that are off anyway. Can they do this?
A. If you come under the School Teachers Pay and Conditions Document you should receive the extra day, notwithstanding it falls within the half term week. If you do not it will be a matter of interpretation of your contract of employment insofar as the bank holiday entitlement is worded. It could also amount to discrimination of part-time workers if you are not provided the same opportunity to take the holiday as your full time equivalents, particularly if you are on the same type of contract with the same employer. This comes under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000.
Hours of work & holiday
Q. Hi, I am currently contracted to 32 hours a week over 5 days, however for about 6 months now I have been taking one day a week unpaid as my employer wants me to keep my current contract so that they can bring me in if they need me when I am having an unpaid day off. They have now said that because I am only working 4 days a week my holiday entitlement has changed. Is this correct? Thank you for your advice
A. You are contracted to do 32 hours per week - I hope you have a written contract. The unpaid day (6.4 hours) is a temporary variation to your contract, because your employer wants to bring you back into work if needed. As you are being asked to take unpaid leave for one day a week you are still accruing holiday at your normal contracted rate, so I would suggest your employer is mistaken.
If the arrangement were to be made permanent, i.e. that your working hours are now permanently reduced to reflect a four day working week then I would agree you should only accrue holiday for the 4 days not 5.
Jubilee Holiday
Q. Hi I have a question around bank holiday specifically jubilee this year. My company in my contract state I get 20 days holiday plus bank holidays but have confirmed that we are not getting the day off unless we use our entitlement. Equally the Thursday is classed as a spring BH and they have instead moved to giving us the Friday off making us work the Thursday can they do this?
A. As you receive 20 days plus bank holidays, you will receive the extra day this year. That doesn’t necessarily mean you will be able to take it on a specific date, but it is ok for the company to say you have to use one of your 29 days holiday if you want that specific date off.
The company can ask you to take holiday and refuse holiday when they wish, providing they give the correct amount of notice in doing so.
Gross misconduct
Q. I been sacked for gross misconduct - I took an out of date bread roll and et it during my break. I know other staffs have done similar in the past but they didn’t get the sack so why am i.
A. That’s a good question. Disparity of treatment can be grounds for an unfair dismissal claim. Have you appealed the decision and explained that other staff have been retained for doing the same thing? If not, I suggest you do so.
Try and do as much investigation as you can. Identify those who have done something similar, were disciplined, and what if any sanction they received. Obviously each case stands on its own facts. There may have been fairly strong mitigating reasons why someone has done the same as you but managed to retain their job. Check and re-check your disciplinary policy. Is there a specific mention of this type or offence? Quite often there is, particularly in the retail sector. On the face of it this would appear unfair, but without further detailed information it will be difficult to give a definitive answer.
Fit note
Q. Can we still self-certify sick for 28 days?
A. No - it has reverted to the original 7 days as of 26 January.
Transfer of Undertakings
Q. Our company has been brought out by a bigger one and we’ve transferred over. there now asking us to sign new contracts but there’s less holiday and overtime is no longer guaranteed. can they do this?
A. No - not without your agreement and I doubt you, or any of your colleagues, will be willing to take a cut in your holidays and a reduction in overtime. The Transfer of Undertakings (Protection of Employment) Regulations 2006 protect you from this kind of treatment. Your new employer has to take on the previous terms and conditions of the staff when they purchased the company. I suggest you show them your contract and explain that they are not entitled to unilaterally change terms. They need your agreement.
Employment tribunal
Q. I have bin sacked and it was unfair. how much to go to tribunal cuz i have no money.
A. Firstly, Employment Tribunals are free. Gone are the days when you had to pay £1,200 for an unfair dismissal claim. You must first check your eligibility. ‘Normal’ unfair dismissal claims require you to have a minimum of two year’s continuous service, but a number of claims such as those related to a protected characteristic (disability, sex etc) and whistleblowing do not require any qualifying service, neither do claims for breach of contract claims such as unpaid wages.
You must first contact ACAS and start the pre-claim conciliation procedure. If you can’t sort out your issues with your ex employer, ACAS will issue you with a certificate which you will need to make the tribunal claim. Don’t delay as strict time limits apply.
Legal representation
Q. I have a tribunal hearing coming up soon and I have been told the other side have a solicitor and a barrister acting for them. I can’t afford legal representation, but I was wondering if I could get legal aid?
A. Generally, legal aid is not available in employment tribunal cases; so what options do you have?
I always suggest the Citizens Advice Bureau as a first port of call. They may be able to help with representation. It depends on their workload and whether they have any suitable volunteers at your branch who can undertake tribunal advocacy on your behalf.
You could also check your home insurance policy. Some policies provide employment dispute costs and if you’re lucky you could be allocated a solicitor and barrister to present your case for you.
Some legal firms, organisations, charities and Law Centres offer pro bono services - i.e. free advice/representation. It is worth searching online to see if any can help you.
Finally, don’t despair if you can’t source a representative. Tribunals are well used to unrepresented parties (litigants in person) and will ensure that your case is put over as clearly as possible. I have attended tribunals against litigants in person - I would much rather they were represented, as I was never given the impression that they were put at a disadvantage due to lack of representation - quite the opposite in fact.
My advice is to attend as many tribunals as you can before your own hearing. You will soon see how the issues are approached, how to give evidence and how to ask questions. Above all don’t be daunted because you are facing a barrister or solicitor. They are probably as nervous as you are, fearing they will be given a hard time by the Employment Judge!
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