Today’s Q&As is available to all subscribers. I have had a number of free subscribers this week who have also sent in questions. If they’re not answered today I’ll try and get it in next week’s edition.
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Here’s today’s selection. . . .
Reasonable adjustments?
Q. I had bowel cancer which was successfully removed and I’m now cancer free but I have a large hernia 20cm by 10cm, i’m an engineer and they are saying i cant forfill my job and there is no light dutys, the only thing i can do is apply for other roles
i’ve applied for over 20 jobs only had 4 interviews. Surely this is unfair they are not helping me find other roles, union are doing nothing to help and just say they are correct with what they are offering, hr just say keep applying for other job with in the company. My surgeon has said i’m fit for work but its occupational health that say i cant work. Would it be worth taking this further with a lawyer?
A. I think you should take legal advice on this. If you consider yourself fit for work, as does your surgeon, you should be entitled to work. If your employer is preventing you from working, even though you are willing to work, you should receive full pay. Cancer is considered a disability within the meaning of the Equality Act, even if it’s in remission, so you are disabled. As a consequence your employer is under a duty to make reasonable adjustments for you and one of those would be to offer you alternative work. After all, they are the ones who say you should undertake lighter duties.
I would certainly consider making a discrimination claim for failure to make reasonable adjustments and possibly unfair dismissal should you consider this has destroyed the working relationship with your employer and you leave. As I said you should seek legal advice as this would be a fairly complex matter should it proceed to a tribunal.
Clocking in
Q. Can you please tell me if you have a clocking in and out system should you still be doing time sheets as well with your exact clocking in and out time right down 2 every minute. Thank you
A. The purpose of an electronic system is to do away with manually completing timesheets. However, it is entirely up to your employer how you go about accounting for your start and finish times and any breaks in-between.
I have known some employers not to trust their electronic systems, particularly when they have been recently installed, and have asked staff to enter details manually too. At the end of the day your employer can implement what system(s) they wish and if they choose to duplicate processes then so be it.
Zero hours contracts
Q. Hi. My daughter works at a local hotel on a zero hour contract and she’s given them a date she can’t work due to having plans , they’ve told her she has to because they have a big wedding that day , can they do that ?? She is aware that they don’t have to give her any hours at all but they are that short staffed they won’t do that .’
Many thanks
A. Yes they can ask that she works that day and they may treat a refusal to work as a disciplinary matter but, as you say, they are so short staffed what would the ramifications be? Of course, as a zero hour worker your daughter is free to work at other establishments besides the hotel and she cannot be prevented from doing so. Many zero hours staff have to turn down work as they have commitments with other employers. Because there is such a shortage of hospitality staff I’m sure your daughter can pick and choose who she works for and when she works without fear of being out of work.
Notice of termination
Q. Hey, my son has a new job he’s has 2 part time jobs . Both bosses have gone on holiday. He needs to hand in his notice but they refuse to except till return ? Can you help us as they’ve both taken a month off !!
A. It’s immaterial they have taken the time off. He should hand his notice to whoever is in charge of the company(s) and notice takes effect from when it is communicated. They cannot refuse to accept the notice.
Compulsory holiday
Q. Can my manager give me force me to take unwanted time off?
A. Yes, but your manager must give you twice as much notice as the amount of time he/she requires you to take. So, if your manager wants you to take two days holiday you must be given four days notice.
Holiday pay entitlement
Q. My employer which is a PAYE company pays my holiday pay on top of my wages each month at £1.44 a day and I work on average a 60hour week and my hours are not always the same and can change each week but it is always 60hrs a week, so when I’m on holiday I do not receive a penny. Is this legal?
A. That depends on your contract. If you are paid a salary based on 60 hours and overtime does not attract additional pay your holiday will always be the same - 60 hours. You are still entitled to take your holiday even though you have been paid for the holiday in advance. I don’t see anything illegal in that, although it is unusual.
However, if you are paid an hourly rate and your hours vary, your employer should calculate your holiday entitlement over the past 52 weeks in which you were paid. Regular overtime, commission and boss payments should be included in the calculation, so paying you at the set rate of £1.44 per day may not accurately affect what you are due.
Fit note
Q. Hi, Question for you. Do you have to hand a sick note in. Can I go Awol.
Thanks
A. No, yes, but….. You have an obligation to hand in a Fit Note, as they are now referred to, as any delay may prevent you receiving statutory sick pay. There is nothing preventing you going AWOL but you may find that you ace a disciplinary hearing and possible termination if you do so, unless of course you have a very good reason.
Dress Code
Q. Currently in dispute with my company ref work dress code...I am required to wear white shirt..(non company issue) along with a co issued blue tie..Just been marked down on my monthly appraisal as I have now refused to wear a tie due to my perceived discrimination. The females in the same job have no set dress code stipulated and can wear whatever they like..
Am I being petty or is this sexual discrimination..?
A. I don’t think you are being petty and I am surprised that the females do not have a similar dress code. Dress policies for men and women do not have to be identical, but the standards imposed should be equivalent. This means there must be similar or equivalent rules laid down for both male and female employees. Any less favourable treatment because of sex could be direct discrimination, so you may have a genuine grievance here.
I suggest you raise the matter via a formal grievance. It may be worthwhile sharing the following document with your employer at the same time. Dress Code and Sex Discrimination. What you need to know.
Agency work terminated
Q. Dear Sir I was a contractor working for MOD via a company I had a bad covid-19 ventilated for two weeks then I've been sent back home after that and they terminate the contract I called again the company for the update he asked me to send him a medical report confirming that I'm fit and can go back to work which I did but unfortunately they didn't send me back to my position even my replacement finished his period, the excuse is MOD have my name in there data and they will remember me. I'm the only person in the UK I have not returned to work after I recover from covid.
My question is is that a good enough reason to terminate the contract without payment. my contract was till 21/03/22 but unfortunately, I have sent back home on 17/11/21 and no one contacts me since to check how I'm and how I survive. Thank you for your time and I would like to hear your advice please. Best regards
A. Sadly, I fear there is little you can do. It sounds as though you are an agency worker temporarily contracted to the MOD. Agency workers have few, if any rights, when it comes to terminating employment with the end user. Your contract is with your agency (not an employment contract) and not the MOD.
Furthermore, this occurred some time ago and the cut off time in which you were capable of complaining to an employment tribunal (3 months) has long since passed. I suggest you put it down to experience and look for a directly employed job where you can acquire full employment rights and be better protected in the future. I’m sorry I couldn’t be more helpful to you.
Pay in lieu of notice
Q. Hi I have been following your TikTok’s and I have a question about my notice period. In my contract it states that I have to give 4 weeks notice but also says it’s an understanding that when I put that notice in I don’t have to show up for the 4 weeks. I was wondering would I still be paid for those 4 weeks as long as I am not in employment with another company.
A. Yes, your employer has included a pay in lieu provision in your contract which means that you will be paid for the four weeks notice, although your termination date will move forward to the date of dismissal rather than being at the end of the notice period.
Your contract also includes a “garden leave’ clause in that your employer may require you to continue to be employed during your notice but remain at home and not work for another employer. I suggest you clarify with your employer whether you are being paid in lieu of notice or being placed on gardening leave.
The legal bit. . .