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This week we have questions about:
SSP and company sick pay
Relocation to another workplace - redundancy or not?
Failure to pay outstanding holiday on termination of employment
All holiday entitlement used, so is there an entitlement to unpaid leave?
Can you be made to attend a welfare meeting whilst on the sick?
Dismissed whilst on maternity leave
Night work causing health issues. Can I change to days?
Part time worker discrimination - probably!
Threats of assault at work
Can you be dismissed for something different to what you were suspended for?
SSP and company sick pay
Q. Hi - my husbands employer is acting very unfairly towards him. He has had two heart operations this year (first one failed but he returned to work as soon as he could post op) second one was just a couple months ago so he is still recovering. First time had almost full pay which we thought very decent .. second time 1/3 pay for 3 weeks then NOTHING at all. No communication on phone or in writting.
We didnt notice for 2 weeks as husband had complications then when we did he sent ONE week of SSP. again this week NOTHING. So in a four week period, one week SSP pay. Surely this is not legal - plus hubby did not take payed holiday this year but im sure it still accrues even when you are ill? Please advise
A. Firstly, I hope your husband is OK? All I can advise is that you check your husband’s employment contract. Is he contractually entitled to additional sick pay over and above SSP? His employer paid him extra after the first operation, but that could simply be a discretionary payment, the same with the second episode of 1/3 pay.
Have you contacted his employer to ascertain what the position is? If not, email their HR department or his manager asap and find out what they intend to do. I’m surprised they’re paying nothing now. He is entitled to SSP if he has received it previously. Are his Fit Notes up to date? Sometimes employers will withhold SSP if there is no Fit Note forthcoming, although they shouldn’t.
The only explanation I can think of as to why he’s not getting SSP, is because he has exhausted his entitlement because he has received it for 28 weeks. If that’s the case you should have received from SSP1 from his employer.
Relocation to another workplace - redundancy or not?
Q. The company called us in for a hybrid working meeting. I currently work in the head office two days a week. A business announcement was made with no consultation to say head office is closing, and we are now required to travel to Coventry (22 miles away) 1 day a week in an effort to reduce costs in an under utilised office space.
We all had 1:1 meetings with our managers. And the question was asked is my job at risk if I cannot feasibly travel there. ( I live 3.6 miles away from my current office space.) I was told yes, if you don't like it leave. They are avoiding redundancy pays, and asking us to sign an addendum of change of location. I have raised the request to put in my contract that this change of location,.. that work is only required to be there once a week. HR says no, it's a perfectly acceptable amendment to contract.
A. I take it there is no mobility clause in your contract which gives your employer the right to ask you to work elsewhere.It appears there is a redundancy situation in that the requirement for you to work at a particular location has ceased or will cease. Your employer is under a duty to consult and offer suitable alternatives if they are available. It appears they are saying that the move to a location 22 miles away would be a suitable alternative, no doubt relying that it is only for one day rather than two.
But your circumstances are important. 22 miles, if you don’t have a car or very good public transport, is a very long way away. You may have other responsibilities which prevent you leaving for work earlier. There could be all manner of reasons why it would be difficult for you to relocate, so simply saying it is acceptable to amend your contract is not acceptable.
Failure to pay outstanding holiday on termination of employment
Q. Hi Sir (thebusinessdoc) good evening, I hope you are doing well, Basically i worked in a company and i left the job last month with legal notice. But the issue is they haven't paid my one year holiday pay as i didn't have any paid holiday this year because they asked a favour to take later holiday or get extra pay. I tried to contact with them regarding this matter but i haven't got any response from them since last month So my question is what should i do?
A. This sounds like a straightforward deduction from your pay. On termination of employment you should be paid all outstanding holiday pay. You have contacted them but they have not responded. All you have to do now is contact ACAS and explain that you have not been paid. They will contact your ex employer with a view to reaching a settlement - i.e. you being paid. If they still don’t pay you can make a very simple claim to an employment tribunal. It’s free to claim but you must go through ACAS first and don't delay, there are strict time limits (3 months since your termination date).
Holidays used up, so is there a right to unpaid leave?
Q. One of our staff has used all of their holidays and continues to take days off as unpaid leave. They are constantly late and seem to be off ill around times that are expected eg football matches and weekends away. We sent to all employees saying that unpaid leave will now only be granted by discretion of management depending on reasons and need, in order to keep it to a minimum.
We have been told that we cannot take away unpaid leave and that if they have a bereavement such as a grandparent they are legally entitled to two weeks off work.
Is this correct? I would appreciate any help or information if possible.
A. Firstly, there is no right to a period of unpaid leave when 'normal' leave runs out. Whoever told you that is talking nonsense. There are instances where there is a statutory right to unpaid leave, such as unpaid Parental Leave, but this doesn’t cover general time off because ordinary holiday has run out.
Bereavement leave is only available in limited circumstances, and certainly not for the death of a grandparent, although most employers will allow a limited amount of unpaid time off - usually a couple of days. This would be purely discretionary on your part.
You are right to put out the email to all staff saying unpaid leave is discretionary. Taking short term absences to watch the football, get rid of the hangover at the weekend etc. can be tackled by having a robust absence policy. Lateness can be addressed through your disciplinary policy. Once you start to crack down on it staff will understand that you will not tolerate unauthorised absence and lateness and you will se an improvement.
Can you be made to attend a welfare meeting whilst on the sick?
Q. If ur on sick leave with anxiety and stress should be called in for a welfare meeting whilst on sicknote please advise.
A. This all depends on the relationship you have with your employer. If the anxiety and stress you are suffering is as a result of something said or done in your workplace then you may wish to avoid anything to do with work whilst you are recovering.
However, this may be a genuine request for a meeting because your employer is concerned for your health and welfare and would like to explore ways to assist you back into the workplace.
If you are not confident attending the workplace you could ask that it is held in a neutral venue, your home or via telephone or Zoom.
At the end of the day if you are too ill to attend a meeting of any sorts, simply say so. They can wait until you have recovered.
Dismissed whilst on maternity leave
Q. Can I just say I am loving your tik Tok videos there has been some useful information in them so thank you, but I need some help on a personal matter it's a long story, but the biggest thing is a friend of mine is currently on maternity leave she has been with company more than the 2 years, but the company now has sacked her why she is on maternity leave and told her she is no longer employed is there anything she can do and is this even legal
A. From the limited information you have given I can’t say, but if the dismissal is in any way related to her pregnancy or maternity leave, then she is fully protected as the dismissal would be automatically unfair. As such there is no requirement to have been employed for over two years.
The first thing she should do is appeal against the dismissal and set out why she believes the dismissal is due to her pregnancy or maternity leave. Being made redundant whilst on maternity may be genuine, so there are occasions where the dismissal can be fair, providing the employer follows a fair procedure.
Night work causing health issues - Can I change to days?
Q. Hi, I’ve been trying to get off from working night shifts back to days for over a year now, and the response I get is that there no one to take over from my night position, I’ve already explained that doing night shifts has been taken effect on my physical and mental health. What can I do?
A. You need to determine what the contractual position is. Were you provided with an employment contract? It should set out your working hours. If you were employed specifically to undertake night work you are obligated to do it. However, if it was variable, between days and nights, there is a good argument that you have done your fair share and that you should be given daywork to even it out.
Instead of just asking, it may be better to put in a formal flexible working request. Have a look here, it gives full details of what you need to do. Your employer can refuse on certain grounds and you can currently only make one request in any 12 month period. It’s worth a try. Other than that, for the sake of your health, you could look for other daywork.
Part time worker discrimination? Probably
Q. Hi, Just wondered if you can give me a bit of advice. I work as a XXXX, most of the team work full time. We have 2 members of part-time staff. I myself have recently gone part-time. We have now received an email saying one of the part timers have to change to a Friday as full timers are having to have split days off if they work a weekend and our manager doesn't think that's fair. I think this is quite discriminatory towards us part timers. Is there anything we can do?
A. It’s dependent on what is stated in your contract or what was agreed when you went part time. If your part-time hours were previously set down, change to Friday working is a fundamental change to your terms of employment and cannot be simply imposed on you without your prior agreement. Furthermore, the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, offer you a degree of protection.
If you are treated any less favourably than a full time worker or suffer a detriment as a consequence of your part time status you can ask for a written statement of reasons for the less favourable treatment. Your employer will probably argue that they are justified in making the change, but, on the face of it, this does not appear to be fair to you simply because it is causing fun time employees to split days off.
Threats at work
Q. What is the procedure when an employee threatens to assault me in front of the manager director.
A. If you are the employee’s manager, use the company disciplinary procedure to address the misconduct. If you don’t have one (you should), just Google ‘ACAS Disciplinary and Grievance Procedure’ and it explains it all in there.
If you are not the employee’s manager, raise a grievance, in writing, to your Line Manager.
Can you be dismissed for something different to what you were suspended for?
Q. Hi, hope you can help. Can you be saved for a different thing than what you have been suspended for?
A. Yes. Whilst you are suspended the company is carrying out an investigation. If, during that investigation it comes to light other misconduct has occurred, providing your employer gives you full details of the alleged misconduct and follows a reasonable and fair disciplinary process you can be dismissed.
You should be given all the evidence your employer is relying on to support the allegation prior to your disciplinary hearing and you must be given a right of response at the meeting.
Useful links
The legal bit. . .