Equal Pay
Q Can a colleague that has the same job title that is a new starter to the company be paid more that you? Our company has struggled to employ new staff so they had to put there salary up £5000. So there at 8 current employees on £5000 less that someone that has just started the role. We have to train them ourselves as well.
A Your employer is entitled to pay staff at the rate they choose, providing it is not discriminatory - i.e paying female employees less than males for doing the same or similar work. So, simply paying new starters extra to attract them in the first place is acceptable - although it does seem unfair on current staff, particularly if you have to train them up! I suggest a written grievance on behalf of yourself and your colleagues asking for pay parity. If your employer is short staffed I suspect they wouldn’t want to lose you over a pay issue.
Interviews
Q Can an employer arrange a pre call with an applicant to establish personal circumstances and details prior to making a decision to interview or should they interview the candidate and ask all they want to know in the same way they interview other candidates?
A Yes, but If I were an employer I would be very wary of doing so. An employer should not be asking about ‘personal circumstances’ before or during an interview. The interview is to assess the candidate for the role; the interviewer should not take personal circumstances into account in making their decision. Decisions which are based on personal circumstances are capable of being challenged on grounds of discrimination.
Similarly, enquiring of your personal circumstances prior to an invitation to an interview can be challenged, particularly if, following the enquiry, you are not invited to an interview.
Zero hours contract
Q Hi I need some advise please. My daughter is on a zero hour contract and have been told that nobody will be taking holiday over Christmas as she is in the hotel industry, can she tell them she’s not available over Christmas?
A Yes, she can, but I doubt she will be receiving any further hours in the future! Remember - on a zero hours contract the company is not obliged to offer work, so if your daughter refuses to work over Christmas when she is required the company may consider she is surplus to their requirements and dismiss her. If she has less than 2 years’ continuous service she will not be in a position to claim unfair dismissal.
Covid
Q We often get asked to work away from home. Work provides accommodation. Due to covid only the last 18 months we have have had separate rooms. We're now being asked to share again in twin rooms. We're not happy about this as covid is obviously still around. Can we refuse to share or do we not have a choice. There is no reference to this in our contracts.
A I suspect Covid will be around for many years to come so at some point in time we are going to have to return to as near normal as possible. I would hope your employer has risk assessed the position for working away from home and taken measures to reduce any risk of infection and spread. Perhaps your employer believes it it acceptable to share a room if both occupants are vaccinated and follow current guidelines, although I accept it is difficult to practice social distancing in a twin room!
That being said what was the trigger which made your employer revert back to room sharing? Can you refuse to share? In my opinion you can and should rely on the fact that you perceive there is a serious and imminent danger to your health if you share a room with a colleague.
I certainly wouldn’t want to share a room with a colleague!
Agency worker
Q hi quick question I just got job with an agency. Today have been told by someone that the normal chap is on holiday for 3 weeks. Can the company sack me then? I haven't been told it is temporary by the agency and the other company?
A Sadly, yes they can. That is probably why they have utilised the services of an agency - to provide cover for an absent full time employee.
Disciplinary Investigation
Q I just found out I've been placed under investigation and would really appreciate some advice. Firstly one of the reasons for the investigation is supervisors reportedly saying I'm disruptive within the company and can be purposely awkward/negative, would they need to provide examples/evidence or can the investigation be based purely on hearsay?
A It follows that any allegations made against you in an investigation must be substantiated by examples to back them up. However, your employer is not obliged to supply you with documentary evidence, such as statements from staff or copies of any other documentation at this point. Remember an investigation is simply a fact finding exercise. At the conclusion of the investigation, the investigating officer will make a decision as to whether there is a case to answer.
If there is a case to answer you will be called to a disciplinary. It is at that point you should be provided with all the evidence the company is relying on, so that you have ample opportunity to rebut any allegations against you.
GDPR
Q A guy who was my shift partner had his wife do a 5 page complaint about me,I have asked my line manager about this and the contents he has told me that I do not need to know anything about it and has threatened me with a minor misconduct discipline if I continue to even talk or ask about those matters. He has on a few occasions when I have been sick text me and asked me when I will be back in work could you give e me some advice as to what I can do please.
A In answer to your first point, if your manager refuses to disclose the complain make a GDPR request as no doubt the complaint contains your personal information.
In respect of texting you whilst on sick he/she is probably asking to determine when you will be back at work, so would on the face of it, it would be reasonable. However, if you have provided a fit note for a fixed period of absence, you could text back and ask that he/she stops texting you over this particular issue.
Overtime pay
Q Hi I am receiving the premium overtime payments as there is a short amount of staff in the industry I am in I was just wondering is there a certain amount of time that I receive this payment for before it becomes mandatory?
A I am assuming there is nothing in writing regarding the premium payments, such as an amendment to your contractual terms. The question is - in the absence of a specific end date, when has the premium payment become custom and practice? There is no specific time period, but I suggest it has to be considerably longer than it has currently been in operation.
I suggest you write and ask your employer for clarification on this point as, if and when the staffing problem ends, there is likely to be an issue over whether the premium payments should continue.
Furlough
Q Can claim for all the pay I listed I was losing 20 percent a week during furlough. I never gave them permission?
A If you were paid 80% of your salary whilst on furlough and didn't you sign a furlough agreement then yes you can. The claim must be made within 3 months, less one day, of the date of the last time you were deducted the 20%.
Overtime pay
Q Recently our contracts were changed to state that 40 hours had to be worked before any overtime could be claimed. But now if sent home early the hours are being deducted from what should be overtime and no consideration that overtime is paid at time and half. Is this legal? Or should I be at least getting the 30 mins per hour that I’m losing? Really would appreciate your comments!
A It depends on how your working hours are worded in your contract. If you are guaranteed a set number of hours per week, i.e. from x to x Monday to Friday then you should be paid for those hours regardless of whether in fact you do them, unless there is a clause allowing for you to be sent home early. If there is such a clause I would argue they are right to deduct from any overtime worked, but if no clause you should receive overtime pay if you work it.
As is always the case it is down to the interpretation of the contract and without having sight it is difficult to say.
Annual leave
Q I am on annual leave currently started on the 22nd November for 14 days. I’ve been contacted today and have been asked to call the other manager and arrange what days I can work due to people being off with covid. Can they do this?
A I don’t see an issue with this. An employer can contact you whilst on annual leave but you are under no obligation to respond. However, It is best avoided from an employer’s perspective, as the last thing an employee will want whilst they are sipping sangria by the pool is the boss ringing them asking about work. However, in these circumstances it sounds reasonable to call and ask you about your availability on your return to work.
Unauthorised absence
Q We have a member of staff who hasn't turned up for work for the past week. We tried to call him but his mobile just keeps reverting to the answer phone. We can't contact him and he hasn't responded to our messages. Can we treat his employment as being self dismissed?
A Not yet! You should make further enquiries as to his whereabouts before taking any formal action at this stage. There may be a genuine reason for his absence so don't jump to the conclusion that he has dismissed himself. Ideally you should have an unauthorised absence policy. The policy should set out the circumstances when an unauthorised absence occurs, how seriously you treat unauthorised absence and that unauthorised absence will be treated under the disciplinary procedure.
On the first day of absence you should try and make contact by telephone, text, email or even their social networking site if you have the details. Have you asked his work colleagues if they know where he is? Do you maintain records of his next of kin or an emergency contact number? If so try those as well. If you can't make contact with these methods you should write to him at his normal address and copy the letter to that of his emergency contact or next of kin. Set out in the letter that he is absent from work without permission and detail all the attempts you have made to contact him previously. Ask him to get in touch with you as a matter of urgency and give him a deadline for responding, say three days. Tell him that you will treat his absence, without a legitimate reason, as a disciplinary matter which will be dealt with under the disciplinary procedure. Make sure you send the letter by recorded delivery.
If you hear nothing from him after the three day deadline don't just assume that is the end of the matter and send him his P45. You must now follow the terms of your disciplinary procedure and deal with his non attendance by inviting him to a meeting. If he fails to attend you can hold the meeting in his absence and communicate your decision to him by letter. Don't forget to offer him the right of appeal. Throughout the whole process, whether he returns to work or not, you should make a written record of the time and date of each and every attempt you have made to establish contact in order to justify your actions if you are later challenged in a tribunal.
If he returns to work you should still follow your disciplinary procedure. Many employers consider unauthorised absence to be serious or gross misconduct and this is set out in their company rules.