I’ve received a higher than average number of questions across a broad spectrum of employment issues this week and I have attempted to answer as many as I can.
If you have an employment question, whether you are a worker or an employer, simply email it to me and I’ll endeavour to answer it for you. I do receive an awful lot, so if your’s is not answered, I apologise in advance - but keep trying!
Also look out for my newsletter later in the week where I will be addressing the implications of mandatory vaccination. There’s now some case law on this issue!
Here are today’s questions . . .
References
Q. Hi there, I was wondering if I could ask you a question. I'm about to hand my notice in and need two references. Unfortunately nobody will give me one as apparently its against company policy. Is this actually legal? Thank you.
A. I presume the two references for your new job? Nobody can be forced to give a reference and many companies now refuse to give references, except to confirm start and finish dates of employment. We live in a litigious society, so it’s not surprising businesses are reluctant to give anything more for fear of ending up in court for providing misleading information.
Sickness absence
Q. I’m really struggling with anxiety atm, I’ve got crippling migraines most days. I can’t focus, I’m having to sleep off migraines during the day then I end up trying to work back time in the evenings hence the 2am email. I don’t sleep at night for over thinking then sleep in, in the morning. My work is starting to slip and I know my colleagues and management are beginning to notice. HOT MESS!
I am reluctant to take time off as I’m worried I would loose my commission and be unable to pay my bills. I realise it may sound like I’m asking my team to carry me through on the commission front but we’ve all worked really hard this year and have actually banked enough money to make next months target. I just know myself that some time away will be worth at the very minimum double whatever time I have to take off. I’ve not been off sick in 2 years. not even any time off with covid. Do you think I will loose my commission or could you help direct me as to what to look for within my contract to find out?
A. It sounds like you’re having a difficult time at the moment and the last thing you need is to be forced to work due to financial constraints. Your commission structure will be contractual and hopefully there will be a clause in your contract which covers this. You will also need to check your sickness absence clause and/or sickness policy.
I can’t say whether you will receive any commission payments whilst off sick without sight of the relevant clauses, but they should be self explanatory. Unfortunately, it may be that you only receive statutory sick pay for your absence, but it may be worth it just to get you back to full fitness. Have you considered having a conversation with your employer and explaining your situation? They may be sympathetic and understanding and agree to pay you if you’re not contractually entitled to sick pay.
Daily rest
Q. What’s the legality rules of working 7 days a week if the person is to contracted to 36h a week over 5 days Monday to Friday but there always overtime on weekend and we always done it but now saying we need have time away from work 2 days every 14 days?
A. Yes, your employer is correct. Here’s Regulation 11 of the Working Time Regulations which is fairly self explanatory:
Weekly rest period
11.—(1) Subject to paragraph (2), a worker is entitled to an uninterrupted rest period of not less than 24 hours in each seven-day period during which he works for his employer.
(2) If his employer so determines, a worker shall be entitled to either—
(a) two uninterrupted rest periods each of not less than 24 hours in each 14-day period during which he works for his employer; or
(b) one uninterrupted rest period of not less than 48 hours in each such 14-day period,
in place of the entitlement provided for in paragraph (1).
Redundancy
Q. So I worked for XX for 19 years, pandemic hit 2020 and XX gave us the option of voluntary redundancy which was the government package plus about £4K so I received just under £1k per year or stay at XX and receive a 40% pay cut. I chose VR. However the remaining staffdid not get a 40% pay cut they only received 15%. Now XX have asked myself and my other friends and colleagues whom took VR to go back on 40% less money. Is this allowed?
A. This sounds like inducement. Had it not been for the threat of a 40% pay cut you may not have taken VR. You have probably signed a settlement agreement which precludes you from taking tribunal proceedings against the company. Without seeing the terms of the agreement I can’t say whether you can take any other action - but that’s a separate issue and you may want to seek legal advice on that point.
Can they take you back on 40% less? Yes. Your employment was terminated and you received a redundancy payment. Unlike fire and rehire, when there is no break in continuity of employment, you are starting afresh. You can either accept the terms offered or find work elsewhere. It sounds harsh - and it is!
Sickness and holiday
Q. I am on long term sick employer is paying ssp and had I had pre booked holiday dates. As they have not paid full holiday pay for this period I imagine I would get this time back?
I have also sent my resignation in writing to my line manager. I’m still signed off through doctors advice (recovering from pneumonia and stress). I will give them 4 weeks notice (in contract) which is also when my current sick note runs out. I have not had any response as I’m on long term sick ssp I imagine I should have at least had a letter confirming date and holiday entitlement calculations etc. what should I do now wait to see what happens towards the end of this period?
A. Yes - if you had booked the holiday time off and was not paid for it that holiday is still outstanding and should be included with any other outstanding holiday in your final pay.
As you have not heard back I suggest you email your line manager or your HR department and ask that they confirm receipt of your resignation. You should also ask that they confirm what your final pay will be including accrued but unused holiday.
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