I’m sorry it’s late!
My apologies for the Tuesday Q&As going out on a Thursday this week, so I’ve made it available to all subscribers.
This is due to me being away from the office on a fundraising cycling challenge. On Friday, 16 June, I set myself the target of cycling completely unsupported from Land’s End to John o Groats and back (1,768 miles) in just 10 days. Unfortunately, due to a very strong headwind most of the way home, I took an additional day; hence the Q&As didn’t go out as planned
I have been raising funds for a homeless charity in Cornwall (Harbour Housing), and I wanted to highlight the plight of the homeless along the way. So there were no B&Bs or hotels for me. I slept rough in fields and bus shelters and the odd McDonald’s restaurant whilst I was waiting for my powerbank to charge up.
I kept a daily diary update on Facebook and created a JustGiving page to manage the donations. If you can spare a pound or two I’d really appreciate it, thanks.
Holiday pay. Should my overtime be included in the calculation?
Overtime and pay fall below the minimum wage. What can I do?
Suspension during an investigation is blocking my internal transfer. What can I do?
Contractual meeting between employer and employee is not being honoured - next steps?
Expressing milk and breastfeeding. What are my rights?
Should I have to wait 6 weeks for a contract of employment?
Should I disclose the fact I was previously dismissed from my job? The new company are asking!
Dismissed for not paying for shopping as per retail purchasing policy
CCTV and pay deduction
Working time query
Refer a friend benefits
Holiday pay. Should my overtime be included in the calculation?
Q. Can I ask if you are able to clarify if I am entitled to holiday pay on overtime worked. My contract is that I am paid a Monthly Salary based on my annual salary and also am paid Time and a Half for overtime on weekdays and Saturday and Double Time for Sunday and Bank Holidays
I am lead to believe I should receive holiday pay on overtime but not sure how it should be calculated I think it should be based on my average pay if I am entitled. Are you able to clarify
A. If you work regular overtime and are paid for it (as you are in this instance), your holiday pay calculation should reflect your overtime work. I stress it must be regular overtime, not just the odd one-off at weekends. The calculation is made by taking the average pay over the preceding 52 weeks of work. You do not include non-working weeks when you received no pay. You can go back up to 104 weeks to find your average if there are a lot of non-working weeks.
Overtime and pay fall below the minimum wage. What can I do?
Q. Hello What can I do if I have been paid below the minimum wage and also when I've done overtime I've been paid below my standard rate, which I have worked out from my salary please.
A. You must be paid at least the National Minimum Wage for your age. You can find the current rates here. Failure to pay the minimum wage can have severe financial consequences on your employer. You can claim to either the employment tribunal or HMRC if you are underpaid. You can’t make a claim to both. I suggest you raise a grievance in the first instance, and if the situation is not resolved to your satisfaction, you can go ahead and claim.
Check your employment contract. If you are on a salary, you may be expected to work overtime as part of your duties. That is permissible, provided when you calculate your hours of work against your salary, your pay does not drop below the minimum wage. If you are contractually entitled to overtime pay, it must be at least your normal hourly rate.
Suspension during an investigation is blocking my internal transfer. What can I do?
Q. I have been suspended 11 weeks ago as a patient where I work on a shared reception apparently heard me say something out of text and offensive. I did not say anything. I have had a first investigate meeting and I have asked for a reply on what is happened and why this is taking so long. In the meanwhile I have been accepted for a difficult role within the same company and they have asked me to start in 4 weeks.
I emailed the manager to inform them and they are saying I can not leave until the investigate is over and is will impact my new role. They can't give me any time frame to this. I don't know if they cam do this or not HR are also involved and are making no effort to help me. Surly if my new manager has not an issue with this I should be able to start the new role in 4 weeks as I have given them notice. Please can u advise
A. The company are not doing anything unlawful by blocking your transfer within the company. They are entitled to put on hold any moves to reassign you, promote you or demote you.
As you have been suspended, it indicates to me the allegations against you are quite serious. It would not be prudent to move you at this stage until the investigation and any subsequent disciplinary process has been concluded. I sincerely hope it’s not the case, but there is a possibility you could be dismissed as a consequence of this incident.
I would hope the manager overseeing your new position will understand the position you find yourself in and hold off on your transfer until the process is complete, particularly as you are both employees of the same company.
Contractual meeting between employer and employee is not being honoured - next steps?
Q. Hi, I had 3 months probation, extended another 3 months due to sick leave and maternity leave, this ended in February 2023 12 weeks later still no review meeting even after constantly chasing it up since April and being told ‘will give a date next week’ and then nothing. Contract doesn’t state it can be extended and just says ‘meeting should be conducted after 12 weeks of starting’ I’ve only had one meeting back in 2021 after first extension.
A. If there is a contractual right for your employer to hold a meeting after 12 weeks (presumably to confirm your position following your probation period), then you should have one. You have asked but are being fobbed off. In effect, your employer is in breach of contract, but you must ask yourself what you would want from the meeting other than having your position confirmed. It makes no difference to your employment status or rights whether you have the meeting or not. Up to 2 years’ service, you can be dismissed at any time with little or no recourse to an employment tribunal.
My advice is not to push this. If your employer can’t be bothered to hold the meeting, so be it. Keep your head down, so to speak, until you have that magic 2 years of service, and then you are home and dry and cannot be dismissed on a whim.
Expressing milk and breastfeeding. What are my rights?
Q. I’ve just returned from maternity a few weeks ago but I’m still breastfeeding where do I stand with taking time out to express during my shift. I did enquire before I returned to work but nothing has been arranged.
A. Employers are legally bound by the Equality Act 2010, which recognises breastfeeding as a part of sex discrimination. This implies that employers cannot discriminate against or treat a woman less favourably because she is breastfeeding.
From a health and safety perspective, the Management of Health and Safety at Work Regulations 1999 necessitates employers to provide a suitable environment for breastfeeding mothers. Employers are obliged to perform a risk assessment for breastfeeding employees and take all reasonable steps to remove or reduce any identified risks.
Workplaces should be equipped with private, clean, and safe spaces where women can breastfeed or express milk. The provision of adequate rest periods is also crucial, as breastfeeding or expressing milk can be time-consuming.
Furthermore, the Employment Rights Act 1996 provides protection against unfair dismissal. If a woman is dismissed for any reason related to breastfeeding, it would be regarded as automatically unfair. Similarly, the Health and Safety at Work Act 1974 ensures that employers provide a safe and hazard-free environment for all employees, including breastfeeding mothers.
So, in your case, you have considerable protection and should discuss this further with your employer. Let your employer know that supporting breastfeeding mothers not only promotes a more inclusive and diverse workplace but also enhances employee satisfaction, morale, and productivity. Therefore, implementing these rights is not just a legal obligation, but a smart business practice.
Should I have to wait 6 weeks for a contract of employment?
Q. Hi, is it ever okay to hand your notice in before you recieve a contract from your new job offer? I’ve been told the checks (finance/references) can take up to 6 weeks and after then I will recieve a contract. I’m concerned as my notice is 3 months.
A. Yes, you can hand your notice in at any time, regardless of whether you have received your contract or not. Whether you should provide 3 months notice is debatable. As you have no contract your employer can’t refer to a notice provision contained within it. If you have an offer of employment letter setting out the terms of your employment, notice provision may be contained in it.
Remember, the legal position is that you should have a document setting out your terms and conditions of employment from day one of your employment, so your employer is breaking the law by asking you to wait six weeks for the document.
Should I disclose the fact I was previously dismissed from my job? The new company are asking!
Q. Hi there, need your help urgently please! I was dismissed from a role 4.5 years ago and have had 2 jobs since then. I’ve just been offered a new role where their contract states I have to warrant I haven’t been dismissed from a previous role in the last 6 years. They outsource employment checks so are they likely to find out? Do I need to tell them before I sign the contract, or wait until they flag it to me? The dismissal was completely unfair so I’ll be gutted if effects this role. Thank you!
A. It's important to note that honesty is usually the best policy in these situations. If the contract specifically states that you must warrant not having been dismissed in the last six years, then withholding this information could lead to further issues down the line, including the possibility of dismissal if the truth comes to light.
Employment check companies are thorough, and while the likelihood of them discovering your dismissal depends on the depth of their investigation, there's always a chance they might find out. It could be beneficial to disclose this information upfront, along with an explanation of why you believe the dismissal was unfair. This way, you give the company a chance to understand the context.
Dismissed for not paying for shopping as per retail purchasing policy
Q. I'm writing on behalf of my friend. He has worked for his company in retail as management for 13 years. No problems before, recently he popped a bag of shopping ready to pay for after his night shift - this bag was placed to one side. He went back at 8am to get it to purchase and the bag had been confiscated. management went on to suspend him after reviewing CCTV and identifying my partner as the suspect. He's now proved from bank statements he purchases his shopping every morning. He went in for his 2nd meeting today and has been dismissed due to "attempted theft".
What are your thoughts?
A. It’s very difficult to say from the limited information you have provided. However, dismissals for misconduct are fair if the company undertakes a full investigation, follows a fair procedure and reaches a decision a reasonable employer is entitled to make.
The keyword here is reasonable. A tribunal will not interfere with a decision to dismiss if it is reasonable. It may be a harsh decision but not unreasonable. Clearly, he has paid for purchases like this in the past, but I would assume that the company would have a set procedure for staff purchases. It may be that the company have a strict policy in respect of staff purchases which, if not followed, will lead to an allegation of serious misconduct. Retail are very hot on this, so I’m not so sure he can do much other than appeal and ask for leniency.
CCTV and pay deduction
Q. Can my employer check cctv without notifying me and then not pay me full wages saying i claimed money for time not worked
A. Firstly, your employer should only monitor cctv for legitimate business reasons. They should have an updated Privacy Policy covering CCTV monitoring and storage of images. Monitoring of employees’ productivity should be addressed in the policy.
Secondly, if your employer considers you are not working when you should, they should address the issue by way of a disciplinary or performance management meeting. Docking pay is not acceptable, and I doubt whether legally your employer has permission to do so in any event. To do so, they would need your permission which had previously been given in writing. Generally, such clauses for deductions from pay are contained in your statement of terms and conditions of employment (contract).
Working time query
Q. I’m a field based utility worker, we have to give 30 travel to then from work, unpaid and not including working time. Is this right?
A. If you are a peripatetic worker (workers with no fixed base), travel to your work location and return to home from your last location is considered working time. This does not mean you should be paid for the time, although the time does count when calculating whether you are paid at, or above, the national minimum pay rate.
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Useful links
The legal bit. . .