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More questions and answers from the exciting world of employment law and HR!
Refusal to comply with biometric data gathering
Not paid on payday - how long is it reasonable to wait?
Told to go home early, should I still be paid till the end of my shift?
Can I reclaim my pension contributions as I’ve opted out?
Bullying at work. Do I have to work my notice following my resignation?
I raised health and safety issues and now management is victimising me. Is this whistleblowing?
Is my colleague justified in using foul language to other workers?
I’m on SSP, can I just leave without giving notice?
Variable hours contract or not? Holiday pay issue
Waiting days for SSP is calculated in days not hours
Refusal to comply with biometric data gathering
Q. Watching your tik toks thanks for all the information I have a question if you have time employer installing facial and thumb biometrics in my job as factory worker can I be made too use it if I don’t consent?
A. The use of biometric data, such as fingerprints or facial recognition, in the workplace is regulated by the Data Protection Act 2018 and the General Data Protection Regulation (GDPR). Employers may use biometric data for authentication purposes, such as clocking in and out of work, as long as they have a legal basis for doing so, such as your explicit consent.
Employers must also ensure that the use of biometric data is necessary and proportionate for the purpose it is being used for, and that appropriate measures are in place to protect the security of the data. They must also inform employees about the purposes for which the biometric data will be used, how long it will be retained, and who it will be shared with.
They are probably expecting staff to consent to their personal data being used this way, but any consent obtained under these circumstances may be tainted because of the more dominant position of the employer over the employee.
Your employer should carry out a Data Protection Impact Assessment (DPIA) which should consider not just what the employer is trying to achieve but whether the processing is proportionate i.e. can the same purpose be achieved by less intrusive means?
It is a very high threshold for an employer to rely on the legitimate aim reason under GDPR, so if you refuse your consent I believe they will have to find an alternative method of you clocking in.
Not paid on payday - how long is it reasonable to wait?
Q. When is a reasonable amount of time to wait before you get paid on pay day? I have no employment contract and have been employed for 17 months. As a manager often work and hour or two to get the job done. Employer says no as the work has not been completed within my working hours.
A. There is no reasonable time to wait to get paid on payday. You should be paid on pay day - end of. Regardless of whether you have completed the work within your working hours, you should still be paid for those hours. You must have an employment contract - it is your legal right. Insist your employer provides you with one and that you are paid on time for the hours you have done. If you suffer a detriment such as unfair dismissal for asking for your contract in writing, it is an automatically unfair dismissal regardless of how long you have worked and you will have a valid employment tribunal claim.
Told to go home early, should I still be paid till the end of my shift?
Q. Hello. I work out of a yard delivering. My contract states 8-5pm Monday to Friday. If I get back to the yard before 5pm, ask if there’s anything for me to do. Be told no and to go home. Should I still get paid till 5pm?
A. If your contract states from 8am - 5pm, they are your contracted hours for pay purposes. If you are told to leave the premises early for lack of work that is your employer’s decision, but you should still be paid until 5pm. Your employer has the opportunity to make you do other work until 5pm but they choose not to do so.
Can I reclaim my pension contributions as I’ve opted out?
Q. I opted out of my work place pension, before the cut off point. I've paid £167.13 in to the pot. I've asked for the money back and still waiting 4 months on, they haven't said anything apart from we will look in to it. What can I do please
A. I’m not a pensions expert, but I believe you can request the return of your contributions within the first month of employment. Thereafter you may have more difficulty. You should contact the pension provider and ask if you can have a refund of your contributions as your employer may not be in a position to refund them. Ask your employer for the contact details of their workplace pension provider.
Bullying at work. Do I have to work my notice following my resignation?
Q. I currently work at a domiciliary care agency as a senior, due to management bullying I’ve handed in my notice of 4 weeks, I am being tactfully bullied and treated badly, can I quit? I don’t technically have a up to date contract with 4 weeks, I only have an outdated one. Do I legally have to stay?
A. If you have resigned because of the bullying you could argue that it is constructive unfair dismissal. In constructive dismissal cases you should resign as soon as the breach of contract occurs and should not delay, so providing any notice as you have, is above and beyond what you are legally entitled to give in this situation. Leaving without notice is generally the norm in unfair dismissal cases. So, if you are relying on the bullying of your managers as a reason for your resignation, you do not have to provide notice, but make sure that in your resignation letter you explain your reason for leaving and set out any instances of bullying and what if any, action or inaction they have taken when/if you previously reported the bullying behaviour.
I raised health and safety issues and now management is victimising me. Is this whistleblowing?
Q. I raised issues within my company with regards to not having adequate ppe. We do a lot of drilling and arent provided dust masks etc. I raised this with health and safety department. I included data from HSE and COSHH guidelines backing this up. The head of health and safety contacted me and advised that he had came to same conclusion 3 years ago, however the company pushed back due to costs.
Ever since this, I have been targeted by management. I was brought in for a drug test off the back of an "anonymous email". They refused to show me this email in the meeting even though I requested this. I passed the test and they had to give me job back after having on paid leave for a week. I had failed a drugs test at a previous job and I believe they done digging on myself to find a method to get rid of me. This random drug test was only 2 days after I had submitted all my findings with regards to health and safety.
Is this something a tribunal would consider as bullying due to being a whistle-blower?
A. From what you have said, it would appear you have suffered a detriment for raising health and safety issues, and you more than likely have a case. I suggest you gather as much documentary evidence as you can (you probably already have) and create a timeline setting out the history of this matter. Any change in management attitude towards you since you made the health and safety disclosure should be logged and if there were any witnesses, you should approach them to see if they will assist. I know that this can be time-consuming but it will help if you can get as much information written down as possible.
I know how time-consuming subject access requests can be for companies, but in your case, you need to find out if there was an anonymous tip off so I recommend you make one asap. If your sickness absence is related to your detrimental treatment that will add to any financial compensation you are due if you are successful. If you do take a case against them, even if you lose, you are protected, so any treatment as a consequence, i.e. victimisation, will be unlawful and capable of amounting to a further claim.
The only problem I see arising is a limitation issue. You have three months from the date of the detrimental treatment (drugs test) to make a claim, although it can be extended, particularly if you are off with stress/anxiety/depression. If it is way over the three months you could wait until the next episode of mistreatment by management and use that as the point at which the clock stops ticking. You can then refer back to all the previous instances of bullying/victimisation to support your case.
Is my colleague justified in using foul language to other workers?
Q. At work some people choose to pick the bread as its lighter and its better for your pick count, we pick the heavier items bananas, potatoes and the like and our counts are much lower. On this particular day my friend was picking the bananas while the people in the bead picked the light stuff and got himself worked up saying "this is not fair" once all the heavy stuff was picked, we then go onto the herbs and they are very very light and very good for your days count, the people in the bread saw what was being picked and came to join. my friend saw red and called them a bunch of lazy c@#ts and was reported. He said he saw sorry for his outburst and should not have sworn.
I feel he was put in a position by bad management and although he was wrong for calling him a c@#t he had a valid reason to be angry. Your thoughts would be appreciated.
A. It may be that your working conditions are unfair and you are being unduly disadvantaged because you are doing heavier work. The way to address that is through your grievance procedure to effect a change. I would check your company disciplinary policy, there is usually something about inappropriate language. Whilst your colleague may have been upset and seen red it does not excuse his outburst. That being said I would use the current situation as a mitigating circumstance. Had they not come and domne the light picking he wouldn't have said it.
At the end of the day he will probably receive a written warning, so treat it as a damage limitation exercise.
On SSP, can I just leave without giving notice?
Q. My sister has to give one terms notice at her nursery. She is currently on SSP but can't go back to the workplace cos it's too stressful a work environment due to the management staff. Can she just quit?
A. Yes, but she is still required to provide notice. She can remain absent during her notice period. If her notice is the same as the statutory entitlement to notice she should receive full pay for the notice period. However, if it is a week or more than the statutory notice (and it may be if she has to provide one term’s notice) then she is not entitled to any notice pay, just SSP.
Variable hours contract or not? Holiday pay issue
Q. when i started my job i was put on a flexible contract. They sent me an email confirming my availabilty would be tues to friday 6 til 3.
However since september last year i have done extra shifts working saturday and sundays my choice i might add. So christmas i took 2 days holiday but my holiday pay was less than my normal rate for 2 days. When i contacted HR they said that holiday pay is calculated as an average of hours and pay over the previous 52 weeks. Never heard of this . I contacted them again saying that i work set hours so how can i be paid less they advised imm on zero hour contract! Having looked at my contract it states flexible contract. But i have worked tues to friday 6 til 3 since i started. And have actually been working 6 days a week for past couple of months.
I then got called into the office by my manager to ask why im disputing my holiday pay . Thats how its worked out by payroll on a average. But im still adamant that i shouldnt be worse off when i take holiday.
Now do i continue to challenge them as no one in my workplace really understands it or do i sit back accept it until i have done 2 years service which will be october 23
A. It appears you are not on a zero-hours contract but one with variable hours, although if you worked the 6 till 3 shift every week since you started I would argue that became an implied term that you would always work those hours and therefore they are not variable. When you took on the additional shifts, if they are now permanent it could be argued that they are now incorporated by custom and practice into your contract and your holiday pay should be based on those six days you work (i.e. as if you are on a salary because you receive the same each week), not an average of the previous 52 weeks.
We use the previous 52 weeks’ average to calculate holiday when there is a variation over a regular period, so if your only working the weekends once in a while, it may be that they are not considered a permanent change and your holiday should be based on your 6-3 weekly shifts with any weekend work added to give you an average. It may say that your working hours are variable in your contract but if, in reality, they are fixed, they are not.
You can wait until October to pursue this, but you would still be entitled to claim unfair dismissal if you were sacked for raising the issue now because you are asserting a statutory right not to suffer an unlawful deduction from pay. That being said, you will obviously have full employment rights from October.
Waiting days for SSP is calculated in days not hours
Q. My work place recently introduced first 3 days unpaid sick leave. We work 35 hours a week but most of us are working 35 hours in 3 days and office staff are working 35 hours in 5 days.
People working 5 days get 21 hours deducted as the rule says first 3 days sick leave is unpaid. People work 35 hours in 3 days get 35 hours deducted a week and they call it as 3 days not a week's pay. We questioned this but management is hanging on loop hole in the rule which only says first 3 days (not in hours) unpaid sick leave.
We believe, everyone doing 35 hours a week should only be deducted 21 hours when they are sick for a week to make it fair and to avoid any discrimination.
A. I’m not so sure you can argue it like that. Although it appears unfair to the workers who work 3 days per week, the legal position is that in order to qualify for statutory sick pay (SSP) the first three days of absence are classed as waiting days, and SSP is payable from the fourth day. It is not capable of being broken down into hours, so those who work five days per week will receive SSP from the fourth day providing they meet all the other eligibility criteria.
Useful links
The legal bit. . .