Today’s Q&As are free to all my subscribers and cover questions from bereavement leave to uniform allowances. It is thanks to my paid subscribers that I am able to devote considerable time to writing the newsletters.
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Changing commission payment date
Q. Hi, i was paid commision a month in leiu. ie sales in Feb were paid in March. There is nothing in my work contract or commision plan that states when i should get paid the commision . it was changed with out notice recently . have the company done anything wrong legally? i have done limited research and they seem to have broken an implied term of the contract but not the cobtract its self
A. If the payment of commission is not detailed in your contract then you must look at what the custom and practice has been in the past. You are right that if you have always been paid commission the month after it was earned then that is an implied term. The payment of wages (and commission is part of your wages) is a fundamental term of your contract, so any change to that term, such as frequency of payment, date of payment and amount of payment etc. should be agreed with you.
I take it that the change without notice is detrimental to you otherwise you would not be writing the question. I suggest you write a formal grievance stating out the breach of contract and asking your employer to revert to the previous position immediately. In the meantime, you will continue to work under protest until the issue is resolved, but if not, you reserve the right to accept the change as a fundamental breach of contract, thereby terminating your employment and claiming constructive unfair dismissal.1
Discontinuing uniform allowance
Q. Hi Tim, thank you for all of the guidance you put up it’s really useful.. I have a question for you .. I am a caretaker at a primary school. When I was employed after 6months probationary period I was taken in permanently and the head teacher gave me a lovley letter of how happy they were with me in the letter it also stated that I would be given £100 for uniform from April to April. I started this job in June 2017.. this year the new head of school has said they are not going to give me my £100 allowance.. they use the excuse of the school being In deficit but school has always been in deficit.. can they do that ?
A. You have written confirmation that you will receive an annual payment of £100 uniform allowance. This is a breach of contract question similar to the one above. However, I don’t suggest for a moment that you should resign and claim constructive dismissal because your allowance has been withdrawn.
It is a unilateral variation though and is a breach of contract. You should write a grievance asking for the £100 to be reinstated. If not resolved you can contact ACAS first, with a view to making an employment tribunal claim for a deduction from wages. It might not be much in the scheme of things but it costs nothing to make a tribunal claim.
TUPE
Q. Please can you offer any advice as my internet searches are not providing any information? I was subject to Tupe in March 2021, under protest as my business “amended” my role 3 weeks before I was notified of TUPE. This change to my role that I protested against ensured I was conveniently placed at risk. I’am taking this issue up with my old employer via an employment Tribunal.
However I have still never started work with my new company, they continue to pay me my full salary but after 14 months of uncertainty stuck at home with very little communication it’s starting to cause me significant stress and I feel I’m losing the ability to effectively operate to my old standards if they ask me to return to work or I need to look for a new job . To be honest I would be happy with redundancy (22 years service) so I can move forwards but what is worrying me the most is someone has mentioned that perhaps my new employer is waiting until 2 years is up so they can let me go with no redundancy payment or notice period? Is there a hidden clause in the transfer of undertakings that would allow them to do this ? If so what can I do to protect myself?
I know being paid to do nothing for over a year sounds great, it’s not fun and is very restrictive!
A. Firstly, there is no hidden TUPE clause that you fear. TUPE simply transfers over all of your rights and obligations to your new employer. Any measures your new employer intends to make as a consequence of the transfer should have been communicated to you before or at the time of the transfer. If your role is duplicated, or there is a restructure resulting in redundancies, your past service (22 years) must be taken into account for any redundancy calculation and notice period.
So, whilst I understand it is not great to be in a position where there is a degree of uncertainty, you have two choices. Either force your new employer’s hand by writing and asking them what the position is regarding your job, or simply continue taking the full pay you are receiving and say nothing. You could use the time to look for an alternative job, and if there is nothing in your contract which prevents you from working for another employer during your current employment, why not take a second job?
Additional work without pay?
Q. Can you be forced to work un paid over time? Nothing mentioned about it in my contract. I work 8-5:30 but we never finish on time so work til about 6 every day instead
A. Nobody can force you to work but you may be contractually obliged to do so. If you are a salaried worker it may be that your contract provides you must work additional time for the needs of the business. But if, when calculated, your wages drop below the National Minimum Wage, then you are not receiving your full pay.
If however, you are contracted to be paid hourly and your set hours are as stated above, you have no obligation to work in addition to those hours without pay. If you agree to work the extra 1/2 hour you are entitled to be paid for it.
Mandatory training at home in your own time
Q. Are employers allowed to ask you to complete the required online training for work at home in your own time?
A. That depends. Check your contract. Contracts issued after April 2020 must set out the training your employer requires you to do, even if it’s not paid for. If your earnings are above the National Minimum Wage the time spent training at home may be covered by your pay, but if the hours, when included in your pay reference period, bring your hourly rate below the National Minimum Wage, your employer must ensure that you are paid extra to being you up to the legal minimum.
Contact with work whilst on holiday
Q. If your holiday is interrupted by work emails or call from your manager, is it correct that your holiday is null and void and must start again?
A. If only that were so! No - holiday does not ‘reset’ if you are contacted by work whilst taking time off for rest and recuperation. My advice is not to answer work emails whilst n holiday and tell your manger that you will be uncontactable for the duration.
Working hours and breaks
Q. Can employers demand what time employees comes to work and force a 1 hour break?
A. Yes. When you start work you agree a number of terms and conditions of employment with your employer. In return your employer agrees to pay you for your services. If your employer states you have to start work at a particular time, then contractually you are obliged to do so, and if he/she stipulates that during the working day you must take a one hour break, then you must do so too.
Bereavement leave
Q. My partner’s mother has died and we are both obviously distraught. Am I allowed to paid time off until I am over this? it’s really knocked me back.
A. I’m sorry for your loss. There is such a thing as dependant leave if a dependant or child under the age of 18 dies. Dependant leave for anything other than a child is not paid and there is no specific timeframe set out. Basically it amounts to what is reasonable.
In the case of a child under 18, the entitlement is up to two weeks off (parental bereavement leave) and statutory bereavement pay.
In your case, sadly there is no statutory right to time off, but I would hope your employer may allow you time off unpaid, or allow you to use some of your holiday entitlement to cover your absence.
Resignation and notice
Q. We have an employee who walked out yesterday, throwing her keys on the desk and saying she wasn’t happy that she wasn’t involved in a decision which affected her department. I think she feels she is more important than she actually is and believes she should have more of a say. My question is; should we pay her the full one month notice she should give and should we meet with her to discuss this matter further.
A. I’ll deal with the second point first. When a member of staff leaves, and it is acrimonious, with allegations or accusations of wrongdoing by fellow members of staff or the company in general, it is probably good practice to offer a meeting to discuss further and perhaps learn something from the episode. It may also help if there is a subsequent tribunal claim further down the line, because it shows you have attempted to address the problem rather than just letting it go.
In respect of the notice, she should give you one month’s notice and has failed to do so. She is in breach of contract and you are not obliged to pay her any more than up to the date she walked out in addition to any outstanding holiday pay.
Q. I have a tribunal coming up and want to call a couple of witnesses. I don’t think they want to attend. Can I just rely on their witness statements?
A. You can, but they will carry very little, if any, weight with the tribunal. You should exchange witness statements with the other party well before the tribunal hearing and your witnesses are expected to attend. If you simply turn up for the hearing with just the witness statements the other side (your opponent) will not have the opportunity to challenge their evidence and cross examine them. It is infinitely better to have your witnesses there to give first hand account of their evidence and answer any questions from the judge or your opponent.
The legal bit. . .
This newsletter contains information about employment law and workers rights. The information I provide is not legal advice and should not be treated as such. You must not rely on the information in the newsletter as an alternative to legal advice from an appropriately qualified professional. If you have any specific questions about any such matter you should consult an appropriately qualified professional. You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information in this newsletter.
Always think very carefully before resigning and making a constructive dismissal claim and my advice is to seek legal advice before taking such a drastic step.