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Here’s today’s selection. . . .
Disability discrimination?
Q. I had a job interview for which lasted 5 mins and they only asked me when can I start and what is my availability like. The manager that I interviewed me was only in the job for 1 month.
I then received a message and email my start date. I arrived at my new job and started working. When I saw the manager I explained I have a bad back and may need help living heavy things he said that's fine. 5 hours into my shift I was called over to help restock I said I'm so sorry I need help with the last shelf he said you should of told me you had a disability. He then asked me to go on brake and then called me into the office and said sorry I don't think this job is for you and it's not fair on the others if you can only do cashier job. He then let me go because of my back condition. Is this legal ?
A. Well, it all comes down to whether your back condition is considered a disability within the meaning of the Equality Act 2010. To be a disability you must establish that you have a physical or mental impairment that has a 'substantial' and 'long-term' negative effect on your ability to do normal daily activities. ‘Substantial’ is more than minor or trivial, e.g. it takes much longer than it usually would to complete a daily task like getting dressed and ‘long-term’ means 12 months or more, e.g. a breathing condition that develops as a result of a lung infection.
If your bad back is sufficiently serious to satisfy both the conditions above you may have suffered disability discrimination. You do not need any qualifying service to make a claim and you will have to satisfy a tribunal that your condition meets the criteria. You will probably need some evidence to support your case - a medical report, your previous medical history and any supporting interventions you have had to alleviate your condition.
Rolled up holiday pay
Q. Hi I’ve just seen your video about holiday pay I work as a cleaner my hourly rate is 9.70 I was told that I get paid 20p over minimum wage as she doesn’t pay holidays is this right or should I get holiday pay thanks
A. No this is not right. If you work for an hour @ £9.50 the holiday pay you accrue in that hour is £1.14, so if she is including holiday in your minimum wage rate it should be £10.64 per hour. But this is not the correct way of providing holiday pay. Holiday is for rest away from the workplace and rolling up holiday pay into your normal pay is unlawful.
Your employer should count back at least 52 weeks in which you were paid for work and arrive at an average for your holiday pay, then provide it to you separately.
Are you an employer and in receipt of an Employment Tribunal claim and have a limited time to respond?
For a very limited period I’m happy to spend 30 minutes assessing the claim and advising on what you should do by way of a formal response to the tribunal. Just email me at tim@tcsbusinessservices.com including brief details and a copy of the claim form (ET1) and I’ll see if I can help you out - Free of charge
Cutting shifts and leaving work early
Q. Can my employer publish our rota then suddenly cut 2 of my shifts with no explanation. Also I went in to work the other day and because it wasn’t busy I got sent home half hour after is this allowed?
A. Your hours of work should be set out in your statement and terms of conditions of employment (your contract). In some sectors employers cannot guarantee the start/finish times and the number of hours to be worked in a set period. These variable hours contracts sometimes have minimum hours, others are zero hours, so nothing is guaranteed. Check your contract to see what the clause is in respect of hours of work.
It is unfair that your shifts are cut with no explanation and I presume at short notice too. Your employer may have a contractual right to do so, but if you’re guaranteed a set number of hours per day/week and those hours are not forthcoming, your employer is in breach of contract.
Your problem may be that if you complain you could find your hours cut or worse, be out of a job. If you have less than two years’ service there is very little you can do by way of taking the matter further. My advice is to have a chat with your employer and tell them that it is unacceptable for you to lose your shifts and be sent home early.
If you have more than two years service you have full employment rights. A resignation and a claim of constructive unfair dismissal may be the way forward if this continues unaddressed, but always take advice and consider very carefully before taking this option.
Employer writing resignation letter
Q. Can my employer write my resignation letter.
A. I probably need a little more info than that, but generally no. Resignation is your decision and takes effect immediately it is communicated. There are occasions when resignations are made in the heat of the moment (that is for another discussion) and are not binding. I can’t think of a lawful reason why an employer would write your resignation letter unless of course you ask them to!
On call. Pay or no pay?
Q. hi was wondering if you could help me please... my work is talking about bringing in a oncall rota but told us we won't get paid if not called out but they expect us to be sat at home waiting by the phone and not get paid is this correct?
A. There has been much legal debate about on-call workers over the years, but the dust seems to have settled. If you are simply sat at home on-call you are not normally paid, but if during that period you have to answer the phone for work or attend to emails you should be paid for the time spent doing the tasks. Some employers will pay an ‘on-call’ rate which is generally below the minimum wage but compensates the individual for being on-call, but not actually working.
It is a significant additional element to your job and you should be fully consulted before implementation. Your agreement is necessary, so usually your employer will look to offer you an additional benefit, i.e pay rise, additional holiday etc.
If you oppose the change your employer’s options are to not implement the on-call in your case or alternatively fire you and rehire you on new terms with the on-call provision included.
Don’t forget the two year rule for unfair dismissal. If you have less than two years service and you refuse to accept the on-call working you could face dismissal without any recourse to a tribunal.
Equality Act 2010
Q. Hi I am self employed market trader (sole trader) and a victim of bullying, harassment and discrimination by other market traders. I have made management aware verbally and in writing but these have still continued. I know being self employed I do not have many employment rights but was wondering if there is a possibility of making a claim for discrimination under the equality act against the council who operate the market.
From my point of view, I have made management aware of the bullying behaviour, with evidence but management have not helped. Thanks.
A. You may be able to make a claim against the council as it is a public body. They may try to distance themselves from the traders who are bullying and harassing you but given they have overall control of the market I would suspect they must bear some responsibility. It must fall under the provision of goods and services or public functions.
You should consider serving questions on the council to determine if you have a case. There is a very useful guidance on this which I hope you will find helpful. This is not my area of expertise, so it may be wise to check out Citizens Advice or your local law centre to see if in fact the local authority has a duty to you under the Equality Act.
Recoupment of apprentice training costs
Q. My son was on a apprenticeship from sept 2018 until May 2022. The company sent him on a 2 year hnc course for the last 2 years. Three months before the end of the course Feb 2022 they asked him to sign a training policy to say if he left within 2 years of completing the course he would have to pay back 100% of the Final year payment. No mention of the first year fee. He was told by his manager if he didn’t sign they wouldn’t pay the final invoice so he wouldn’t receive his certificates
So under duress he signed. After completing his apprenticeship he signed a full time contract. He has now left the company and they withheld his last 2 weeks pay and outstanding holiday pay to go towards the training cost. They are now threatening him with court action to reclaim outstanding monies unless he agrees to a payment plan
Are they allowed to do this as he was an apprentice at the time of starting and completing the course. Also the policy stated everything should be agreed and signed off before the start of any training and makes reference to the apprenticeship agreement. This is affecting both him and his fellow apprentice who is in the same position. Many thanks of any help and advice you can give
A. Firstly, any agreement for the recoupment of training costs must be signed by your son before the start of the course, not at the end when he has little, if any, choice but to sign in order to obtain his certificate. Undoubtedly this would be considered a penalty clause/agreement and would be unenforceable at law.
Furthermore, I’m fairly sure an employer can’t reclaim apprenticeship fees either, particularly if it was funded through the Apprenticeship Levy.
He has suffered an unlawful deduction from pay so ask him to write to his ex-employer and demand they pay his outstanding pay and holiday. If they don’t, contact ACAS with a view to a simple unlawful deduction from pay tribunal claim. If the employer follows through with the threat of court action (which they would be foolish to do), respond with a counterclaim for his outstanding pay and holiday.
Possible health and safety dismissal?
Q. I wanted my employment contract and was told by my boss it was in the HR system which I used daily and had full access to as I was continuously creating contracts for employees and being asked by my employers to access the system for various jobs also being asked to call them for help with her ID and credentials as it was her set up.
So I took the opportunity to call the HR company direct as I had been told to do with her ID and credentials as she had said it was only way they would help. My suspicions were confirmed they said no contract was on the system and I than asked them to check if anyone had called to query a set up and they said no.
I than sent all my grievance to my bosses the fact they had lied to me and My legal rights had not been adhered to. My bosses then called me into office and threw accusations at me and swore at me. She has put me on a suspension regarding breach of trust for calling the HR company direct and enacting to be her which she has advised me to do since May to complete jobs, but because on this occasion it was to reveal her lies she did not like it. She has the recordings and has sent them as evidence to now dismiss me at a meeting. I have suffered depression due to her accusations and behaviour and been on sick leave for 8 days now they are refusing to pay me sick leave Please advise where I stand.
A. It appears you are being used as a scapegoat. If you have been told to use your manager’s id credentials to enable you to log in to the HR system, and when you are speaking to the HR company, it would be grossly unfair now to penalise you for doing so.
I have read your grievance and you are clearly not happy with a number of health and safety issues, and rightly so. You have been employed since the start of the summer, so you don’t have full employment rights, but since you have raised health and safety concerns your employer must tread very carefully. If you are dismissed as a consequence of anything raised in respect of the health and safety issues it will automatically be unfair, regardless of the amount of time you have worked for the company.
I believe your employer will have difficulty if they dismiss you and rely on the impersonation of your manager as the sole reason as you have clearly done so in the past with their permission and have not been reprimanded. It can only infer that your dismissal was for another reason - i.e. raising a health and safety concern.
If you are dismissed, appeal immediately. If unsuccessful you may have a claim for automatically unfair dismissal (health and safety). I note you have told me that you have been provided with an employment contract. You should also claim for failure to provide written terms and conditions of employment. If you succeed in your dismissal claim you could also be awarded up top 4 weeks pay for the lack of contract.
Where to find free advice
Q. Please help I am on the sick from work and they have called me in to a meeting today only informed me last night for 14:00 today and said they have to make a decision as I’ve been sick for 3 months and I was on exited probation due to not receiving my training because they did not do my training there are more details and I have photos and all messages to back everything up . My question is where can I go for help with this please.
A. Whilst I am not in a position to take on individual cases at this time, you may find it useful to contact ACAS or the Citizens Advice Bureau in the first instance. Some of the larger cities have Law Centres and/or Free Representation Units to help those who can’t afford to pay a high street solicitor. Have a check online for your nearest centre.
One piece of advice I will give now, more than ever before, is to consider joining a union. Although it may be too late to help you with your current issue, it will almost certainly be of help in the future.
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Not working notice period - pay or not?
Q. I was wondering if I don’t work my notice period and my contract says I have to but I don’t then will I be paid or not?
A. No, you won’t be paid. Your employer only has to pay you for the time you have worked.
The legal bit. . .