Today’s Q&As goes out in full to all subscribers. This week we have questions about:
Notice during absence
Failure to pay wages or holiday on termination
Paying for training costs and course attendance
Attending meeting on day off - should you be paid?
Pay for bank holidays and termination
Disability and reasonable adjustments
Time off for hospital appointments
Overpayment of wages
Lawful investigation?
Minimum notice required when resigning
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Notice during absence
Q. I have got to give 3 months notice I am currently on sick due to stress at work and bullying. Do I have to give the 3 months?
A. You are contractually bound to give three months notice in normal circumstances. If you have been bullied at work you could argue that the fundamental term of mutual trust and confidence has been broken and you are treating the contract as terminated. Under those circumstances you do not have to provide notice, but you should resign without delay.
If you don’t consider the mutual term has been broken, you should give the requisite three months, but if you don’t, there is little your employer is going to do to enforce the notice period. Check your contract to see if they can withhold your final pay if you don’t give the correct notice.
Failure to pay wages or holiday pay on termination
Q. I’ve worked at a new job opening with my team of 4 chefs for 6 months, the company was having a tough time with finances and they wanted to restructure & make our positions redundant. We agreed to finish on a said date but the company has withheld our final payment and our holiday entitlement pay.
It’s been 2 months and they were no communication or efforts made to pay us. The company has now come back accusing the team of theft as to why they are with holding our salaries, this is utterly untrue and they are just trying to not have to pay us.
They are also saying that they are also making us responsible for list of earnings due to them having to replace us. Please can you help we with any advice on the grounds they will have to get them to pay us ??? It would be greatly appreciated
A. Let’s deal with the last point first. The company can’t sue you for loss of earnings if they have made you redundant following the restructure. It was their decision to go ahead with the redundancy. On the first point, you MUST be paid. If they are claiming that you or your colleagues committed theft, that is a separate issue - and a red herring.
Any outstanding pay, whether it be your earnings or holiday pay owing should be paid in your final pay period. Don’t delay or send any further communications to them as they are selectively responsive and clearly do not intend to pay any of you. Contact ACAS immediately and tell them the problems you are having. They will not take sides but will issue you with a pre claim conciliation certificate if the company doesn’t pay you. Once you have the certificate (it will be sent to you online) you can make a claim in the tribunal for an unlawful deduction from pay. You have three months less one day from the date you should have been paid to make the claim. The ACAS conciliation period extends this by 28 days, but please don’t leave it till the last minute otherwise you could lose out. If you are over the time limit you can still make a County Court claim to recoup your wages and holiday pay.
Paying for training costs and course attendance
Q. I recently went on a training course for work and work reluctantly paid for but I had to sign to say I can’t leave within in a calendar year unless I have to pay it back. Even though they can get it back from the government when they put there tax return. Also they wanted me to use this course as annual leave.
Also I was off on annual leave worked out 3 Fridays on the bounce due to not being able to afford childcare but my boss came to me and said the days off need to stop and if I want to take a day off then I must take a week off.
A. You have signed a ‘recoupment of training costs agreement’. They are fairly standard and most have a sliding scale of repayments dependant on how long after course completion you leave. They give the employer the right to deduct costs from your pay, but it must be signed before you start the course to be binding on you. Annual leave is for rest and recuperation, not to undertake a training course. You should be paid your normal pay rate for course attendance.
Unfortunately for you, your employer can insist when and how much holiday you take at any one time, so if they want you to stop taking leave on Fridays, they are entitled to do so. Have you considered a flexible working request? That may be an option to assist you with your childcare arrangements.
Should you attend a meeting on your day off?
Q. Can I refuse to go to a meeting if it's my day off And out of my contracted hours.
A. I don’t see why not, but check your contract as there may be a clause covering such eventualities. If not, then the instruction to attend the meeting may be a reasonable request (all depends on what the meeting is about). You should be paid your normal hourly rate or be provided with time off in lieu.
Pay for bank holidays and termination
Q. Hi there iam leaving my employment after 24 years at the ending xmas…. Can my boss say he’s not paying me for Xmas day and Boxing Day when he always has paid bank hols and finish me before the agreed date end of Dec
A. If your agreed termination date is at the end of December you should receive all your normal remuneration up to that point. If you are ordinarily paid for the bank holidays that should continue. If you insist on working until the end of December as per your agreed finish date, your employer could make you use any remaining holiday entitlement before your end date. If your boss finishes you before the end of December that could be an unfair dismissal.
Disability and reasonable adjustments
Q. I had a stroke in march this year I didn't at the time take time off work because we where running about 20 staff short so I had to cover care shifts anyway I was attending my Gp frequently along with the stroke nurse and my blood pressure was critical high I was advised to take time off to recover and given a 4 week sick note then 2 months after that , my HR department have asked me to attend a welfare meeting and also requested my medical records , I have went to the meeting and my manager asked me was my stroke related to covid as I was very sick with covid I said I'm not medically trained and could not answer that , they are wanting my medical records now , the question I'm asking do I need to give them my records , also I have asked for reasonable adjustment that I work my coordinator hours within the office but not out helping with care shifts until I recover . Is that resanable to ask them .
A. To deal with the medical records issue first. An employer can ask that you disclose your medical records, as far as is necessary, to establish suitability for continued work, but this generally goes hand in hand with a request for a medical report from your GP. Simply asking to see your records does not give them the authority to make their own assumptions on your health. I suppose it does give an indication as to whether or not your absences up to this point have been genuine.
You can refuse to disclose your medical records and there is a set procedure to go through before your employer sees them. Your GP will check with you first before releasing them to your employer. If you refuse an employer can only go on the evidence it has to hand, i.e. your sickness record, but if they are contemplating termination through ill health they are on very shaky ground if they don’t obtain a GP report or occupational health report first.
You have asked for a reasonable adjustment to your working environment. Your employer should always consider reasonable adjustments if you have a disability - all the more reason for a medical report. If the adjustments are refused and it is established you have a disability within the meaning of the Equality Act, you have suffered disability discrimination. I suggest you let your employer know in the strongest terms that you consider yourself to have a disability.
Time off for hospital appointments
Q. hospital appointments, do you have to use your holidays to go?
A. There is no automatic right to take time off for hospital appointments (unless you’re pregnant whereupon you and your partner can get reasonable paid time off for antenatal appointments).
So, you either make appointments in your own time (difficult) or you ask to take annual leave or unpaid time off. Check your contract though as some employers may allow you paid time off for medical appointments.
Overpayment of wages
Q. My partner has recently left her old job and now in new employment. Her ex employer has accidentally paid her a whole month wage as I'm assuming they haven't taken her off the payroll. Does she need to disclaim this or legally pay it back and what happens if they pay her the following months if they do not realise?
A. Obviously her ex employer has made a mistake and the overpayment can be reclaimed. She is not contractually entitled to the payments and if and when the employer realises the mistake they will request repayment. Failure to do so will leave her open to a legal claim. I suggest she repays it now, even if her ex employer is not aware as money is always difficult to repay when you’ve spent it!
Lawful investigation?
Q. My son is 17 and is working as a HGV apprentice. Last week he reversed out the workshop and hit the door. (Damaging the door and the truck). He has been into an investigation today with x3 people. He wasn’t asked if he required anyone to be present. The investigation will now to sent to HR for them to decide what is next. What is the law regarding minors? Should 3 men be carrying out the investigation? Should he have someone in as a witness?
A. He is not entitled to receive any more favourable treatment at the age of 17. Under 18s do have different working time rules, rest breaks and are restricted to the type of work they can do. An investigation is not a disciplinary, so there is no requirement to have someone accompany him at the investigatory meeting and there is no restriction on the number of people present to conduct the investigation.
You say the investigation report will now be sent to HR. If the company decides to go down the disciplinary route, they will have to inform him of the full allegations he faces and provide him with any documentary evidence, including any witness statement, they will be using at the meeting. He should also have the opportunity to have a fellow work colleague or an accredited trade union representative accompany him.
Minimum notice required to resign
Q. Hello, i am looking to resign from my current job but I don’t have a contract at the moment ( I have just moved stores) how much notice do I need to give? If I give a short amount of notice could the withhold outstanding holiday pay due to not having a contract?
A. You should have a contract. It is your employer’s responsibility for providing you with one. The contract should provide the minimum terms and conditions of employment and the amount of notice you must give should be set out in there.
In the absence of a contract, the law states that after one month of employment you should give a minimum of one week’s notice. Your employer cannot deduct anything from your pay unless they have your written agreement in advance. As you have not signed a contract they can’t deduct anything, even if you were to leave earlier. If they make a deduction from your pay on termination you can make a tribunal claim for an unlawful deduction from pay.
The legal bit. . .