Tuesday Q&As
A selection of the week's Q&As from social media platforms
It’s Tuesday and time for my regular Q&A session
Please leave your comments or questions on my social media feeds, or email me direct, and I’ll attempt to answer as many as I possibly can.
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Q Hey, I have just bought a business from someone. His team have came over to me etc through TUPE but part of the deal of me purchasing was him agreeing to pay hours worked up until I took over. Today it was payday and the staff never got paid as he’s claiming I’m liable for it and under normal TUPE rules yes I would but we made an agreement for him to pay with I have screen shots of conversions between us both. Could you possibly advise me I keep getting mixed advice online.
A As you are probably aware all rights and liabilities are transferred from the old employer to you. That includes accrued holiday and pay over the last pay period. I’m hoping the deal you have made with the previous employer is in writing? It’s normal practice for the seller and buyer to agree terms before the transfer of the business. Holiday and salary are two of the main points of contention and they need to be addressed beforehand.
I suggest you pay your staff and then enforce any agreement you have with the previous owner though the courts. If you do nothing your staff will have a valid claim for an unlawful deduction from wages - and they’ll come after you as their employer, or they may even have a constructive unfair dismissal claim against you if they resign. I know it appears unfair on you, but act now to protect yourself and then go after the seller of the business.
Q Can you advise me about business mileage. I work in construction and my contract states that I am site based. The site is temporary office arrangement for the duration of the project, maybe 1 to 2yrs. I need to travel frome home to that site every day. However I look after several sites so have to travel to those site offices too. I believe that all my mileage is classed as business as they are temporary arrangements and not a permanent place of work. Am I right?
A This is probably a question for your accountant, but I’ll give it a stab. Travel to your normal place of work - your commute, as I understand does not qualify as business mileage. Travel from your place of work to other locations, or from home to other locations does, providing it is on a temporary basis. You state the arrangement is for 1 to 2 years. If the work continues for more than 24 months then it is no longer considered a temporary workplace.
You can find full guidance about this and the 24 month rule from HMRC Booklet 490, Chapter 3 - Ordinary Commuting and Private Travel. As I said I’m no tax expert, but I’m minded to agree with you.
Q I’m handing in my notice to a job that I’ve work at for only 2 months. Mainly due to it being too stressful. My contract requires me to give 4 weeks but my new job want me to start in 2 weeks. I’m worried my new job will pull the offer if I don’t start in them 2 weeks. My new job will not give me a contract until I agree a start date. Nor have they given me a formal offer letter. How do I ask to serve less notice? I really hope you can help me!
A As you’ve only been in your current job for two months and it is causing you stress, my advice is to ask for an urgent meeting and request that they release you early from your contract, explaining that you can work two weeks instead of four. Why not be upfront with them and explain why - the fact that you have a new job and they want you to start in two weeks? I’m sure an employer would be grateful you work some notice rather than nothing at all, which many people do.
If they refuse and hold you to the four weeks notice and you leave after two, what are they realistically going to do? They could withhold some of your pay if contractually entitled to do so (check your contract), but other than that not a great deal. I don’t think they will be heading off to the County Court to sue you for breach of contract any time soon.
At the end of the day, if you want your new job you will have to give your new employer a start date, so don’t delay.
Q Looking for some advice, my employer has missed paying my salary on a number of times and it has resulted me in having to find a new job is there anything from a legal point of view that I can do?
A If you have left as a consequence of not being paid your salary, and you had more two years’ service, you may have a claim for constructive unfair dismissal. Failure to pay salary is a fundamental breach of contract. You must not delay in acting on the breach, so if you left a month or two after your salary was not paid then you may have difficulty. I would need much more information in order to give an opinion on this particular point.
However, if your salary remains unpaid, or partially unpaid, you can claim for an unlawful deduction from salary in the employment tribunal. Strict time limits apply - you must make the claim within three months, less one day, of the deduction, or last of a series or deductions.
Q My boss at work is asking for a 6 week notice to take a holiday is this right for him to do so?
A Yes. Your employer can dictate when you take your holidays and how much notice you need to provide him/her to take your holiday. Providing your boss gives you the statutory minimum amount of holiday, or your contractual entitlement (if more), then they are doing nothing wrong.
Q The business I work for is in administration and being purchased by a new company, all of the current employees including myself are being TUPE’d across, we are being given the chance tomorrow to ask any questions we have, is there any specific questions you think I should ask?
A Ok, well this is probably too late for you now, but the main thing you should ask is; ‘What changes, if any, do you propose to make as a consequence of the transfer?’ You should already have been informed of any ‘measures’ the company are considering, but it is surprising how many staff are not consulted and are completely in the dark when they are transferred over.
Q I’m being made redundant on 12-11-2021 I have 147hrs of holiday to take, I’ve received 12 weeks notice. The holiday calendar runs from jan- dec. can my employer use my entitlement to cover Christmas shutdown therefore not paying me any holiday in my redundancy package. Or do they have to pay my holiday the owe me?
A You are still employed as normal during your notice period which expires in February 2022, so normal holiday rules apply. Your employer can insist that you take any remaining holiday during the notice period (subject to the proviso - 2 x notice as amount of holiday to be taken). In answer to your question; yes, your employer can make you take holiday for the shutdown at Christmas and leave you with nothing to add to your redundancy payment.
Q Hi I work 6 hour shift. Management said we have to take 30 minutes break and then pay the 30 mins back at the end of the shift. Is this right?
A It sounds ok to me! The legal position is that you must have a minimum uninterrupted break of 20 mins (over 18 yrs) if you work in excess of 6 hours. The break cannot be taken at the start or end of the shift.
You could work your 6 hour shift with no break or as you are instructed, take a 30 minute break part way through and work an extra 30 mins at the end to complete your six hours for payment purposes. Without seeing your contract I would guess it states something along the lines; ‘You work a 6.5 hour shift with an unpaid break of 30 mins’ - or words to that effect.
Q I’ve got an employee who’s made a negative comment on Facebook. What are the social media guidelines you’d recommend in a policy?
A I can’t go through them here, but you need to consider issues such as whether you will allow access during working hours, what can and can’t be said about your company on social media and what sanctions are available to you should a situation such as this arise.
I have a belt and braces Social Media Policy which you can adapt for your own particular circumstances.
Normally, I supply policies starting at £65 but if any reader would like a copy, please email me direct and I can heavily discount it for you (50%) as a Newsletter subscriber.
Q What’s the difference between an investigation and disciplinary meeting?
A Put simply:
Disciplinary meetings are held to ascertain whether an employee has committed an act of misconduct and if so, what sanction is to be imposed, whereas an investigation meeting is nothing more than an evidence gathering exercise.
It is important to make the distinction, because an employer has a statutory duty to offer an employee a work colleague or trade union representative accompany them to the disciplinary (or grievance) meeting.
It may be that, following an investigation, it is determined that there is insufficient evidence or no evidence to support an allegation of misconduct and the matter is closed there and then.
It’s not a legal requirement to have an investigation meeting, particularly where the facts are not in dispute. Quite often the investigation and disciplinary are held as one, but in such cases any evidence the employer is going to rely on must be disclosed well in advance of the meeting, so the employee and their representative can have the opportunity to challenge it.
In most cases the investigating officer/manager should not also chair the disciplinary. I say ‘should not’ simply because many small firms don’t have the resources to have a separate investigating and disciplinary officer.
Q If your contract states 14.30 finish and you refuse to work after that can you be fired?
A That depends. Firstly, does your contract say anything about you working additional time ‘for the needs of the business’ or something similar? Some contracts will have a clause covering additional working over and above your ‘normal working hours’. You will be in a far stronger position if it doesn’t.
Secondly, if you have less than two years’ continuous service you can be fired because you have no redress to an employment tribunal. Your claim would be for unfair dismissal and you need the qualifying service for that.
Q Would you be able to tell me how many 6 month contracts they are allowed to give you without giving you a full time job.
A In the normal course of events you can have continuous fixed term contracts up to four years, thereafter they are automatically deemed to be a permanent employee, unless the continuation of your fixed term contract can be objectively justifies. An example being that you are taken on a succession of yearly contracts for a temporary assignment lasting four years (say a building project) and it overruns by nine months. In those circumstances I believe it would be objectively justified token you on another nine month FTC.
Coming up . . .
My main newsletter is coming out either tomorrow or Thursday. I’ll be looking at the very topical issue of NO JAB, NO JOB, given that in a couple of weeks CQC care home staff will face certain dismissal unless they are vaccinated.
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