Occupational health, contracts, suspension, conflicts of interest, CCTV monitoring and lots more. . .
Plenty of questions today on various aspects of employment law, drawn from my social media feeds and email enquiries. . . .
Q I have an occupational Health referral for a work place adjustment which is quite reasonable, it was done 12 months ago. My condition hasn't changed which I have had for many years but we have moved to a new building and they are insisting on another OH referral before they will implement the work place adjustment. Is this correct thank you.
A Your employer probably wants to ensure your new environment is suitable, hence the new assessment. It sounds reasonable to me. Generally, when new working arrangements are implemented, it is prudent to have another OH assessment to ascertain what, if any, adjustments should be made as a consequence.
Q I emailed the wrong customer by accident. I never got any kind of official warning from HR. Just an email saying they was looking into changing the system as it was avoidable. it’s happened again but it’s such an easy mistake to make. It’s gone to disciplinary hearing next Friday. I really think I am going to get sacked as now it’s being classed as gross misconduct. I am really worried I’m only young and being sacked from a job is a huge thing for me. This was 3 weeks ago this happened and I have worked since they have not suspended me. Do you think this would be a warning or instant dismissal?
A As there is no suspension and its similar to a previous misdemeanour which didn't result in a disciplinary, I would suggest that you shouldn’t be dismissed for this. If you are, it could potentially be unfair. They may now call it gross misconduct, but that’s a huge step up from taking no action the first time round.
The only problem you may have is that if they dismiss you and you have less than 2 year's service you can't take the matter to a tribunal for unfair dismissal due to your lack of continuous service.
I hope it works out ok for you.
Q have worked for a small buisness for 25 months . I never got a written contract. I do set hours daily. I have been asked to move to other branches which i refused & asked for a copy of my contract . Do i have to sign a contract now even though it will be doctored to suit my boss & her requests now . When there was no written contract from day 1 . & no verbal agreement to change ??? Thank you
A You don't have to sign the contract if it does not set out the verbal terms you are currently working to. When you are provided with the contract you should strike through and sign the clauses that are detrimental to you and which are at odds with your current working practices. Raise a formal written grievance objecting to the detrimental terms.
Alternatively, you can ask an employment tribunal to determine your contract of employment if there is a dispute. It will take evidence from both sides and declare what your main terms and conditions are.
If your employer insists that you must now work at other locations you can treat it as a fundamental breach of contract and resign. Next step is a claim for constructive unfair dismissal.
Q Hi Tim i have a question about my job, we have a HR Director who is also an accounts and financial director is this a conflict of interest?
A Jack of all trades - master of none as they say! It’s not a conflict of interest. Many companies have one individual covering many roles, particularly those with few directors or managers.
Q I have been off sick for nearly 12 months after being injured at work. I have been paid a flat 40hr week for the 12 months. I now have 37 days holiday that we usually have to use by 31st January or lose them. I will start returning to work on the 20th November so will probably only use 20 of those days at the most. Will I lose them or should any I don't use be moved to next year?
A Check your contract first to see if you are allowed to carry holiday over. If it is silent on the subject, ask if you can carry over and if your employer agrees ensure it is in writing.
If your employer refuses, unfortunately there is no statutory right to carry holiday into next year, so use them or lose them.
Q I am currently debating raising a complaint about my bosses usage of CCTV at work. Our hand book states it is for security, the protection of work assets and the safety of employees. However he does use it to observe workers behaviour and when he sees someone doing something he does not like. He will send still images from the CCTV of the individual to a work related WhatsApp group including 15 other individuals? Is this legal? Aren’t images of me covered by data protection? Apologies for a complex question.
A You are right to be concerned. He is using the footage for reasons above and beyond those set out to you. I suggest you ask for an updated CCTV Policy. In creating drafting the policy he should be consulting with you and the rest of the staff.
An employer must not act in a way that is likely to destroy mutual trust and confidence between you when using CCTV. He could find that you have a valid constructive dismissal claim if he continues to monitor your working performance this way. Sending your personal information via WhatsApp to other staff is not going to foster good working relationships and should be stopped immediately.
If he doesn’t then I suggest you take it further with the ICO. I’m not saying it is illegal to use CCTV for performance monitoring, but the information which is being collected should be treated in strict confidence and within the ICO guidelines and GDPR.
Q Can you help answer my question regarding holidays while on furlough, I’m just not sure what my company have done is entirely legal. I work in retail so was off on furlough for a good few months. Each time after we returned from furlough our holiday entitlement was deducted in line with how long we were off on furlough, so for example say my holiday entitlement was 158hrs per holiday year my work calculated the average over the 52 weeks of the year , so say 3hrs per week then times that by how many weeks we were off on furlough and my entitlement was deducted by that many hrs, I was not paid any holiday pay.
A You should not have your holiday deducted. Your holiday accrued during furlough just as it did when you were back at work.
Request your holiday and if you were prevented from taking it, raise a grievance (in writing), with a view to a tribunal claim for an unlawful deduction from pay.
Don’t delay, strict time limits apply for applications to tribunals.
Q I’m having a situation. Where I am driving to work, and doing a lot of additional driving. I am getting nothing towards the running costs towards my vehicle, is this legal or does he have to pay the 45p per mile?
A I’m assuming your contract of employment is silent on this point. There are two aspects to this.
Firstly, you will be able to claim tax relief of your business travel so seek advice from a tax advisor or HMRC in that regard. There’s plenty of info online too.
Secondly, and more importantly, from an employment law perspective your travel expenses (over and above your normal commute) should be considered along with your rate of pay. If you are on or close to the national minimum wage (NMW), the expenses you incur will probably make you dip below the NMW rate, and in those circumstances you should be reimbursed to bring you up to the rate applicable to you.
So, in answer to your question, he does not have to pay you 45p per mile, but should ensure you receive the NMW as an absolute minimum.
Q Is the company allowed to send out a letter at the start of furlough to say that you won’t be accruing holiday on furlough?
A Although furlough is now over I’m still receiving a number of enquiries on the subject and claims for unlawful treatment/deductions can still be made.
The company can send out the letter but it is meaningless. It is a statutory right that you accrue holiday whilst you are employed, and you are still employed whilst on furlough. Don’t be fobbed off!
Q Hi what if u walk out of ur job do u get ur holiday pay?
A Yes. Holiday pay has been ‘earned’ whilst you have been employed. Failure to convert your accumulated holiday entitlement on termination is an unlawful deduction from pay, regardless of whether you have given the correct notice.
Q Self employed construction worker. Had a company recently let me go without even telling me, they just stopped all contact. Can they do that?
A The answer is in your question. The fact that you are self-employed and not an employee or worker means you have no employment rights. The company you were contracted to has no employment obligations towards you.
However, some self-employed workers are not genuinely self-employed and the label is simply attached by an employer to avoid any liabilities they may have. I’ll do an article sometime on employment status, but it’s far too wide to answer here. If you think you are not genuinely self employed contact ACAS, Citizens Advice or HMRC for clarity.
Q hi there - IF they accept and confirm resignation can you still be sacked after a fact finding post acceptance and subsequent invite to a disciplinary?
A Yes. You are still employed during your notice period and subject to the normal workplace rules. Many employees receive substantial notice periods from three months upwards. A disciplinary and summary dismissal can be conducted within a week or two. Often serious misdemeanours come to light during notice periods.
Further an employer, may wish to conclude (or have an obligation to conclude) a disciplinary investigation and meeting, particularly if the employee worked in the care sector or with vulnerable persons, financial services etc, as it may affect future employment.
Q can a company take money from you for any training they put you through if you leave? safety passport forklift etc
A That depends. If you have confirmed in writing prior to the said training that you will permit the deduction of the training costs from your wages then the company can legitimately go ahead and deduct from your pay. Generally, it is set out in your contract of employment (recoupment of training costs clause) or you have agreed in writing in a separate document prior to attending the course.
If you have not agreed to the deduction in writing the deduction is unlawful.
Q Dear business doctor. Can an employer ask for a proof of medical appointment for my family member I'm to escort to his Gp or hospital appointment, so that they can authorise my day off?
A If you don’t provide some form of evidence of the appointment your employer may refuse to allow you the time off. Your employer has no right to know the nature of the illness but they are entitled to satisfy themselves that the request is genuine. I suggest a redacted version of a fit note or GP letter, to comply with GDPR, will suffice.
Q My mum works in a care home they are claiming they can make her come in on her annual leave if she is found to be available. is that true?
A It may be! If the care home gives your mum sufficient notice they can cancel the holiday and ask her to work,
but they must give as much notice as the amount of leave requested, plus 1 day.
The main newsletter comes out on, or about Thursday, with Case of the Week on Saturday or Sunday. I may write additional newsletters if something interesting crops up and I’m not too busy!