Holidays, contracts, rest breaks, maternity pay, redundancy and much more. . . .
We have the usual varied collection of employment law issues. One in particular keeps cropping up - the lack of written particulars of employment, so I have drafted a template letter to send out to employers.
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Q Hello Sir, is the cctv camera is legal requirement for hospitality/restaurant?An employer have no camera in restaurant, result abuse employees rights. Also 1st pay comes which is less than he mentioned on contract. And unpaid break always given after 30 minutes when start work and then 6 to 8 hours continue work. No cigarette break. Need your help advice and suggestions.
A No - it is not a legal requirement to install cctv. If you are suffering abuse at work bring it to the attention of your employer by raising a grievance. Ask your employer why your pay is different to that which you are contractually entitled to. There may be an innocent explanation.
If the rest brake is given after the start of your shift (in your case 30 mins) and it lasts for a minimum of 20 mins, your employer has complied with the law. There is no right to additional cigarette breaks.
PAY & FURLOUGH
Q So I work at a nursery on salary pay so my wage is the same every month however each week I work over my usual hours (I haven’t signed any contract) I’ve been working there for 2 years. The hours I work extra doesn’t get paid to me it gets put in ‘banked hours’ so these are payed back whenever they feel like it spread over a few months wage. They’ve also taken some of the banked hours of mine off of me to replace furlough? I’m really confused and not sure what to do.
A Firstly, you need to ask for a contract and sign it if it reflects the terms and conditions you have been working to for the past two years. This will then set out how your additional hours are paid rather than on an ad hoc basis. They should be paid within your pay reference period unless you agree for them to be held over.
The use of your banked hours to replace furlough is very dodgy. An employer cannot use your pay to replace furlough. Always keep your own record of the hours you work. If you can, calculate the hours which were used for furlough purposes and ask for them to be paid over.
COVID & PAY
Q Can my work send me home for 10 days without pay because I didn't take a covid test I'm on zero hour contract
A Your employer should have a workplace policy in respect of staff testing, and any policy should ideally be created with input from the staff. In so far as testing goes, it is not that straightforward. We don’t currently have mandatory covid testing in the workplace, so it is left to the employer to decide. It’s all down to risk and there will undoubtedly be differing levels of risk dependent on the type of business you work in. Your employer should consider any other covid secure measures which would negate the need for mandatory testing, but in certain sectors that may not be possible and mandatory testing may be the only way to mitigate the risk. It is worth checking any government guidance applicable to the sector you work in.
As is always the case in employment law, it comes down to reasonableness. Failure to take a covid test, where the test is required for a legitimate reason, may be considered a refusal to obey a reasonable and lawful instruction, justifying disciplinary action.
So, in answer to your question - yes, if the company has a good reason for requiring you take the test, they can send you home without pay, but if I were acting for the company I would only advise this as a very last resort.
Of course, it’s all fairly academic, because as you’re on a zero hours contract they would not provide you with any work until they felt it safe enough for you to return.
Q Im a shift worker and my average work hours are 42.5 hours per week. My shift pattern is 4 on 4 off 7 times. Then 10 days off then a week of days followed by the pattern starting again. Once a year i get 17 days off which eliminates that week of days before starting my pattern again. Am i entitled to holidays aswell? Do my 10 days off that are built into my pattern classed as holiday days or just the shift pattern? What is the maximum hours you should work as a shift worker before you are entitled to holidays.
A I’m struggling with the maths on this one, but it looks as though you are entitled to statutory minimum holidays over and above the time off you are already receiving. I would need to se your employment contract to answer with any certainty.
There are no maximum hours you should work as a shift worker or any other type of worker for that matter to qualify for holiday leave. Even working 1 hour per week will attract holiday entitlement.
Q I know I am entitled to a minimum 20 minute rest break if I work over 6 hours, but do I have to take it?
A No. The Working Time Regulations do not state that a rest break MUST be taken. However, an employer should give an employee enough breaks to make sure their health and safety isn’t at risk if their work is ‘monotonous’. Failure to do so could result in an accident leaving the employer open to a potential claim in negligence or personal injury.
Q Can my employer change the company handbook without any notice?
A That depends on whether the handbook is contractual or non-contractual. Many are non-contractual for that very reason - so policies and procedures can be updated/altered unilaterally. That being said, it is always good practice to consult before making any non-contractual changes.
Q I have 21 days paid leave left and want to take off 16 for my 1 big holiday of the year. i’m being told that’s too much for one go. Can they do that?
A Yes. Many employers limit the amount of holiday staff can take in one go. Having you away from the workplace for over three weeks may have an adverse impact on the business which your employer may wish to avoid. It may be worth having a conversation with your employer explaining how any impact can be mitigated if it were agreed - much like the reasons given for making a flexible working request. It’s worth a try.
Q Im on a zero hours contract but not had any hours since March 2020. Am I still entitled to redundancy if my company closes?
A Yes, the calculation is based on your age when the company closes and the pay you earned in the previous 12 weeks when you performed any work. If your company has become insolvent you can claim from the secretary of state for your termination entitlements, i.e. holiday, notice and redundancy pay. If it is a private company you must take action against the individual(s) who operated it.
Q Can my employer increase annual salary based on time with the company although responsibility/skillset the same?
A Service related pay increases have been an issue since age discrimination legislation was introduced. We already have a statutory ‘age discriminatory’ practice in the National Minimum Wage. Pay bands in that regard increase with the age of the worker.
A very useful starting point is the ACAS Guidance: Age discrimination: key points for the workplace. At page 13 it states:
An employer must not:
generally, have different terms and conditions of employment because of an employee’s age, perceived age, or the age of someone they are associated with. This might, for example, include a bonus
However, there are circumstances where different treatment because of age can or may be lawful. Examples include the National Minimum Wage and National Living Wage, redundancy pay, pay and job benefits linked to up to five years’ length of service and, where the employer can objectively justify it, for more than five years’ service.
So, pay can be different based on service up to five years and thereafter it MUST be objectively justified.
TERMS & CONDITIONS OF EMPLOYMENT
Q What if you have no employment contract, not one employee has a contract, what can we do?
A This is a question I am regularly asked because many, many employees and workers do not have written terms of particulars of employment. I have drafted a letter below for use if needs be.
Here is a template letter you can adapt to send to your employer requesting your written terms.
Just copy and paste to a text, email, message or even a good old fashioned letter (but remember to keep a copy).
Re: Statement of Employment Particulars
I commenced employment with [name of company] on [date]. To date I have not received a statement of my employment particulars from you and, as you may be aware, it is your statutory duty to provide one from the first day of my employment. [if employed on or after 6 April 2020] within one month of my starting employment. [if employed prior to 6 April 2020 - delete as appropriate].
Full details of the information which should be supplied in the principal written statement and wider written statement are available from Gov.UK website.
I would be grateful if you would supply two copies (signed by you) of my particulars as soon as possible and in any event no later than seven days from receipt of this letter. On receipt I shall confirm whether the terms stated within conform to the working practices and terms I have been working to since commencing employment with you and if so, I shall return a signed copy for your records.
You may be concerned that, by sending this letter, you will suffer either by way of dismissal or some other type of detriment.
One point to remember is that it is a statutory right that you be supplied with this information and if you are penalised by way of dismissal because you make the request, it is automatically unfair regardless of your length of service.
If you do not receive a response, you have the right to apply to an Employment Tribunal to request an employment judge determine the terms of your employment.
Q I’m an agency driver - do I get holiday?
A You will receive the same holiday as directly employed drivers for the company (minimum 5.6 weeks) when you have worked for 12 weeks. You must then also receive the same enhanced benefits as them such as extra pay for working bank holidays if it is provided.
Q Hi sir I work for care home since 10 years now am 22 week pregnant I got new job in nhs but I didn’t tell them about my pregnancy,shall I tell them before start I got offer letter yesterday from nhs ,also who gona pay me maternity pay . Looking forward for ur reply
A In order to qualify for Statutory Maternity Pay you must be employed for the same employer for the first 26 weeks of your pregnancy and still be employed by that employer in all or part of the 15th week before your expected week of childbirth, so it looks as though you will not receive SMP from either your old or new employer, unless you continue working for the care home for a few more weeks. You will be able to claim maternity allowance though.
It’s up to you when you tell your employers about your pregnancy. You don’t have to mention it at interview. You will have to tell your new employer on or before the 15th week before the baby is due, in order to provide the necessary notice to take maternity leave.
Q if dismissed unfairly and under the 2 years before ET ,can you still take employer to civil court - at your cost ??
A No. Claims arising under breach of contract can be brought in the civil court or the employment tribunal, but claims for unfair dismissal, discrimination and many more can only be pursued in the employment tribunal.
Do you find this particular newsletter too long? Would you prefer if I did two slightly shorter Q&A newsletters each week, say another on Friday?
Let me know in the comments or email me.
Thanks for reading as always