This week’s Q&As is free to all subscribers, so there are 11 questions and answers below - hopefully something for everybody.
Full subscribers receive at least three newsletters per week and have complete access to the back catalogue of publications. Subscribing allows me to take time out from the day job to write these articles, so if you can spare a couple of quid in these difficult times I would be really grateful. Thanks, Tim
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Working hours
Q. Hi I’ve just got a what’s app message from work saying don't come in because the rental cottage hadn’t been used , this message was 20min before my shift was due to start (half way through the day 2-4pm shift) I feel like I’ve wasted my day and lost out on pay. What can I do/say with out rocking the boat? It wasn’t even my manager message if me it was a colleague that was also do to work. Thanks
A. This is a difficult one. You want to complain but don’t want to rock the boat - I can appreciatethat. You need to check your employment contract. What does it say about the hours you work? Do you have set hours or are they variable?
Many contracts in the hospitality industry are either zero hours or minimal hours with the requirement to work additional hours when needed. You may be on one of these. If you are guaranteed a set number of hours each week your employer is contractually bound to pay them, even if they can’t give you the work. But insisting you are paid is obviously going to rock the boat. Furthermore, if you have less than two years’ service you really are at the mercy of your employer as they can sack you at any time without good reason (protected characteristics such as sex, age disability etc excepted).
If you have more than two years continuous service and work is being cancelled at such short notice, you may feel that the mutual trust between you and your employer is breaking down. Raise a grievance, explain your frustration and state that you are finding it increasingly difficult to continue working under these circumstances. If nothing improves, it would not be unreasonable to consider resigning and claiming constructive unfair dismissal.
Injury at work
Q. Hi, If I get injured in work. Do they have to pay me while am off sick?
A. Yes, but whether you are paid statutory sick pay or contractual pay is set out in your contract. Your employer is not obliged to pay you full pay simply because the injury was sustained at work.
You will probably wish to make an insurance claim against your employer - some of the damages you will be claiming is the full pay that you lost whilst off sick (minus any SSP).
Salary disclosure
Q. I have been been given a new contract and it states that I must not talk about or disclose my salary details with my work colleagues, and if I do its a disciplinary infringement. Is that ok??
A. We are naturally very guarded about discussing our pay with others and I get a number of questions from workers undertaking the same role but receiving differing rates of pay. Usually my answer is that an employer is entitled to pay at different rates providing it is not discriminatory - i.e women getting paid less than men for doing like for like work.
In answer to your question - No, an employer cannot prevent you from disclosing or seeking to disclose your pay with fellow workers. In fact Equality Act 20101 expressly forbids this, so your contractual term is unenforceable. However, it does not mean that an employer cannot insist that workers do not discuss their pay during working time.
An employee can’t be forced to disclose their pay to a fellow worker either. The purpose of the legislation is to bring more transparency into pay rates, and in particular tackle the gender pay disparity.
If you are victimised because you have shared your pay details with a colleague you are covered by the Act and can make a tribunal claim in that regard.
Covid and working
Q. Would it be perceived a gross misconduct to knowingly have COVID and still come in to work ? you could catch this or give it to other staff or clients ?
I ask because the rules have been relaxed , but isn’t there still a duty of care ?
A. No, but it would be common courtesy to tell your employer if you have Covid. Your employer then has two choices - allow you to work or send you home on full pay. The government basically wants us to treat it like the flu.
The employer’s duty of care would extend to protecting other employees, so they should consider work from home, but if that is unfeasible, they should take every precaution available to keep you away from other workers whilst you have the disease. Obviously if you feel unwell then you should stay home and claim either contractual sick pay (if entitled) or statutory sick pay.
Pay
Q. Hi Tim. I work for one of the largest car sale firms in the UK , our contracts say we are paid 8 hours a day 9-6 with a 1 hour rest period which is fine . In the mornings before our working day we are Required to attend a meeting from 8:30am, Managers state this part of the job , obviously this isn’t the end of the world but it’s an extra 10 hours over a month .
Secondly in Summer our opening hours are extended to 7pm and we are required to do one extra hour either once or twice a week as this rotates but again this is not reflected in pay so from this week we will still be having morning meetings from 8:30 and potentially once or twice a week working 8:30am -7pm and only being paid for 8 hours . Again not the end of the world but it’s an extra minimum of 14 hours a month & 168 hours a year or 7 working days .
So my question was is this worth questioning or legally are they classed as business needs ?
A. This all depends on the wording of your contract. If you are paid a yearly salary it may be ok. Some contracts have words to the effect: Your hours will be x but you will be expected to work additional hours should it be necessary to fulfil your role . . .etc’
Assuming you are paid monthly, divide your salary by twelve (52 if paid weekly) and compare it to the number of hours you are working. If your hourly rate brings you below the minimum wage then you must bring this to your employer’s attention.
If, on the other hand your contract is worded in such a way that you are paid x amount per hour, you should be paid for any additional overtime you do.
Holiday pay
Q. Hello Tim, I have a question for you! I’m working for a company as self employed for over 2 years o a same job , can I claim holiday pay ? I’m a bit confused about they told me is not my right to have holiday pay if I’m not employed for them . Can u explain how it works and if is a chance I will like to make a claim against them . Thanks
A. As someone who is self employed you are not entitled to any of the benefits awarded to workers or employees. As a self employed person you are responsible for accounting for tax and national insurance contributions and organising your own time off for holidays.
You may have read about Uber drivers and other workers in the gig economy who are claiming holiday rights. That is because the courts have deemed them not to be genuinely self employed, but workers, and thus entitled to holidays and holiday pay.
Determining employed status is very fact specific, but basically, if you cannot substitute another person to do your job when you are sick, or the company you contract to provides a uniform, tools of the trade, and other specific requirements which amount to considerable control, then you may be a ‘worker’ rather than self employed.
If you are unsure of your status you should contact ACAS or a legal advisor. This can be quite a complicated area of law.
Rest breaks
Q. My wife is a midwife . They regularly make her work more hours than she is supposed to but that’s not the reason for the email… The midwives all work 12 hour shifts. In that 12 hours the trust gives the midwives a 30 minute break (which the midwives rarely get to take for obvious reasons - can’t exactly down tools when a baby is coming). Again, this is isn’t the reason for the email… The reason for the email is because the trust makes a note of all of those 30 minute breaks and when they add up to 9 hours the trust then gives my wife (and all of her colleagues) a 9 hour unpaid ‘make up shift’ in which she has to ‘work the time back’ for all of the supposed breaks she’s had… this has been going on for years. none of the staff are happy about it but no one has sought action (to my knowledge) - Are the NHS allowed to do this?
A. The short answer is: I don’t know. There may be a collective agreement which governs this particular issue, which the representatives of the midwives have, in the past, agreed to. I can’t say unless I have seen the employment contract.
It may be that the Trust does not pay for the 30 minute rest break, so rather than trying to deduct the 9 hours of overpayment from her salary, they provide the ‘make up shift’. It does seem a rather peculiar way of doing things but I am presuming that this issue was discussed at length with the unions or employee representatives at some point in the past.
Your wife could raise a written grievance questioning the legality of the make up shift and expect a detailed response from the Trust. I’m sure they will set out how it was originally agreed, if at all it was!
Holiday pay
Q. Could you do a video regarding uk holiday pay entitlement please …
The company I work for pays our basic wage for holidays (we are payed 4 weekly) but is this correct or should they be paying an average of our wages going back X amount of weeks? Some of us do regular overtime amounting to 14 to in excess of 30 hours per month
A. Yes of course, I’ll do a TikTok on this later today. In the meantime, regular overtime should be used in your holiday calculation and should be calculated on a 52 week rolling average. Discount the weeks you didn’t work, so you may need to go back further than 52. You can go back up to a maximum of 104 weeks. If you haven’t been employed 52 weeks you simply use the weeks that you have worked to make the calculation.
Raise a grievance requesting the underpayment is corrected. If it isn’t, contact ACAS with a view to starting a tribunal claim for a non payment of wages. You must make the claim within three months of the deduction from pay or last in a series of deductions. So, if your holidays were more than three months apart, it breaks the continuity and you can’t claim back any further. You can claim back for a maximum of two years.
One final point. This is in relation to 4 of the 5.6 weeks statutory annual leave entitlement. The remaining 1.6 weeks can be calculated by just using the basic wage without overtime. This is because we were granted 20 days annual leave under the Working Time Directive whereas when the Directive was implemented into UK law, the government decided to include the 8 bank holidays we have thereby making it 28. Only the ‘European’ holiday entitlement is subject to this calculation.
Overpayment of wages
Q. I have been paid too much over the past six months and my employer is now asking for it back. They are going to take it from my salary. Are they allowed to do this? Can I refuse?
A. Normally, an employer cannot deduct anything from your salary unless you have provided written authorisation to make the deduction. But there are exceptions, and this is one of them.
An overpayment of wages can be recovered from your pay without your permission (see section 14(1)(a) of the Employment Rights Act 1996). I suggest you ask your employer if you can make some sort of repayment plan to pay it back over a period of time. It would be a very unreasonable employer that refuses such a request and demands the whole sum in one go! And what does unreasonableness mean? Unfairness - and that can lead to a tribunal claim.2
Time off during redundancy notice
Q. I have been made redundant and have to work my six weeks redundancy notice. Can I have time off to attend interviews and do I get paid for that time? My employer says I can have the time off but only unpaid.
A. You are entitled to ‘reasonable’ time off or to make arrangements for training3, but you must have been employed for at least 2 years at the date of termination.
You are entitled to be paid for the time off4 but it is limited to 40% of a weeks pay for the entire notice period, so for example, if you are paid £300 per week you are entitled to £120 for the time away from work during the eight week notice period you have.
This does not prevent you asking for additional time off when the entitlement runs out, it simply means you won’t be paid for it.
Company vehicles
Q. Hello can you use a company van to travel to a shop in your work hours on a dinner break ?
A. It depends on what your contract or driving policy states. Some employers are happy for you to use a van for personal use whilst others say it must be used for strictly business purposes. Many now have trackers fitted so big brother is constantly keeping a check on you. Ultimately it is done to your employer, even though it may feel a little harsh and petty.
The legal bit. . .
This newsletter contains information about employment law and workers rights. The information I provide is not legal advice and should not be treated as such. You must not rely on the information in the newsletter as an alternative to legal advice from an appropriately qualified professional. If you have any specific questions about any such matter you should consult an appropriately qualified professional. You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information in the newsletter.
You must have 2 years continuous service to make a claim. In this case for possible constructive dismissal.