Contractual notice period - how much should I give?
Can you be dismissed whilst absent with sickness
Company has gone bust - how do I get redundancy pay?
Can an employer prevent you from joining a union?
Jury service - what payment can I claim?
Disciplinary appeal heard by the same person who heard the disciplinary. Is that fair?
Recruitment query
Pregnancy discrimination, but is it too late to claim?
Pay cut for disciplinary. Can they do that?
Contractual obligation to move to another work location. Is it fair?
Contractual notice period - how much should I give?
Q. Hello, I am hoping you can provide me with some advice. I started my current work in November 2022 (I have been there 10 months). The work environment makes me feel very anxious and I have had several panic attacks over the last 10 months due to work. I have finally got the courage to hand my notice in yesterday providing 1 week notice. My manager has told me I am required to give them 4 weeks notice. I explained to him I do not have a contract and the only record I have signed since being there was my offer of employment which states “employment can be terminated with one week notice by either party” so I feel I am only entitled to provide the one week notice. They have now made me feel even more uncomfortable and I will find it unbearable doing my 1 week notice next week. Can I not do the notice due to sickness (my mental health)
A. Firstly, all you have to do is provide a week’s notice as is stated in your offer letter. Unless your manager can provide a signed document from yourself confirming you agree to give 4 week’s notice you do not have to follow his/her instructions in that regard. You can go self-certified sick for up to seven days, so there is nothing to prevent you taking sickness absence during your notice period. You will only receive Statutory Sick Pay from the fourth day of absence though.
Can you be dismissed whilst absent with sickness
Q. Can an employer sack while you are signed off on sick with the doctors note many thanks
A. Yes, but your employer must follow a fair process. That would probably mean arranging for a medical report from your GP or an occupational health therapist and then considering and acting on their advice. It may be that
you would be better suited to lighter or alternative duties, or its might be the case that you are unable to return to work in the foreseeable future which may justify a decision to dismiss you.
A point to note however, if your sickness absence is not related to a disability and you have less than two years’ service, your employer could dismiss you with notice, without obtaining reports, and you will have no recourse to an employment tribunal as you will have insufficient service (which is two years) to make a claim for unfair dismissal.
Can an employer prevent you from joining a union?
Q. Is it against the law for a company to tell you that you can’t join a union? Even if they’ve written it in their contract?
A. Yes! So, if you join a union and are either denied employment, suffer a detriment or are dismissed because you are a member of a union you can make a complaint to an employment tribunal.
Company has gone bust - how do I get redundancy pay?
Q. Hope you can help. The company I work for has gone bust and we have all be laid off with no warning. Can i still get redundancy pay?
A. That depends. If the company you worked for was a limited company then the Secretary of State will step in and make payments in respect of notice, outstanding holiday and redundancy pay subject to statutory limits, so all is not lost. Furthermore, if the company had more than 20 employees when it went under the business would be in breach of its obligations to consult you before implementing any redundancies. In such cases a tribunal could make what is known as a ‘protective award’ and award up to 90 days additional pay.
If the company was not limited, i.e - not registered at Companies House, your claim would be against the owner of the business. In that case your would need to claim against that person individually to recoup your losses.
Jury service - what payment can I claim?
Q. I have to do jury service and my employer says they won’t pay me. Can i claim anything for it?
A. Your employer is under no obligation to pay you for jury service, although some will. You need to check your statement of terms and conditions of employment. You can claim loss of earnings of up to £64.95 and a small amount for your lunch, but that is little comfort to many who are called to attend.
Jury service is mandatory unless you are specifically exempt. It can be put off, but you will undoubtedly have to do it at sometime during your working life, so perhaps it’s best to get it over and done with sooner rather than later!
Disciplinary appeal heard by the same person who heard the disciplinary. Is that fair?
Q. I have a disciplinary appeal meeting and my boss said that he will be hearing it. He also dealt with the original disciplinary. Is that fair and can he do it?
A. The ACAS Code on disciplinary and grievance procedures recommends that the person hearing the appeal should not be the same as the person who made the original decision. That seems reasonable, as otherwise the appeal will be determined by someone who has already formed an opinion as to your alleged wrongdoing.
However, there are occasions where it is not possible to have separate people taking part in both hearings. More often than not this occurs where there is simply nobody else to do it, such as when the business is run by one person who is the owner and manager. There may be nobody else in the business they can call on to hear the appeal. Although the Code does not stipulate you should bring in outside help, it can be beneficial for employers to avoid allegations of predetermination. I often recommend a business owner asks a friend/acquaintance from a neighbouring business to help out in these situations. Alternatively, there are plenty of HR companies which offer assistance for discipline and grievance meetings.
Although it’s not a legal requirement to take these measures, should the matter result in a tribunal hearing, the tribunal will look favourably on a business owner who seeks outside help to avoid accusations of bias when resolving disputes.
Recruitment query
Q. As an employer can you employ someone because you prefer their personality over other candidates, who may be the same or more qualified for the position.
A. Yes. Providing the reason you refuse employment to someone is not connected to a protected characteristic (age, sex, religion, disability etc) you are entitled to employ who you wish. If a candidate comes across as arrogant or over confident it may be that you prefer someone who is more humble or modest, even if they are less qualified.
Pregnancy discrimination, but is it too late to claim?
Q. I applied for a job as a packer at local company when I was pregnant and did not get the position because they said I lacked experience. It was only packing very small items to make up hampers and not very technical! I have since heard from a friend who works there that they didn’t want me because of my pregnancy and that the lady who got the job had no experience either. I didn’t suspect anything untoward because they were so nice to me at the time but now I feel really bad about it. It happened 6 months ago.
A. This doesn’t sound good at all! As a pregnant worker, your are protected against discrimination in employment, and that includes pre-employment too. Refusing to employ you because you are pregnant is discriminatory.
You have the right to make a claim in the employment tribunal for pregnancy discrimination. Ordinarily, claims should be made within three months of the alleged act, i.e when it was communicated to you that you were unsuccessful. Tribunals can be very strict on time limits but will extend the time to claim if they feel it is just and equitable to do so.
In your case, you were unaware of the discrimination until your friend notified you. From that point, time is of the essence. I suggest you immediately seek legal advice and get in touch with ACAS as a matter of urgency. Explain the situation and start the pre-claim conciliation process. Don’t delay, as you are already over the time limit, and a tribunal will be looking to see is there was any further delay that could be considered unreasonable on your part.
Pay cut for disciplinary. Can they do that?
Q. Hi mate can your employer cut your pay if you do something wrong.
A. Have a check of your contract of employment. It should contain or refer to a disciplinary procedure. That procedure may provide that an alternative to dismissal may be a pay cut and/or demotion. If that is the case there should be a specific clause in your statement of terms and conditions of employment giving your employer permission to make the pay deduction.
If there is no right in the contract to make the pay cut then your employer is in breach of contract and you have the right to have it remedied by making an application to the employment for an unlawful deduction from pay.
Contractual obligation to move to another work location. Is it fair?
Q. In my contract it states that if I am needed on my contracted shifts in another store I can be asked to work in that store. Is this right?
A. Yes, I don’t see what the problem is. When you start work you agree to the terms your employer sets out and in return he/she agrees to pay you a set amount. If you agree that you will work in another store you are contractually bound to do so if asked.
That being said, if you have been working in the same store for some time and you are asked to work in a store some considerable distance away, that may be unreasonable, because the custom and practice has always been that you work in one particular store, notwithstanding there is a contractual term to the contrary. It will depend on the circumstances of each individual request. If the other store is only a short distance away it would obviously be harder to object to the move.
Useful links
The legal bit. . .