Employment advice
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Ask the expert: holidays and maternity leave
Women on maternity leave retain all their contractual rights as though they were still at work and this includes the right to holiday entitlement. Legally, women on maternity leave have to be allowed to use up their holiday entitlement either before or after the maternity leave period. However, the right to carry holiday over from one leave year to the next depends on the terms of the employment contract with the employer and not the legislation governing maternity leave. So, your employer is correct here in that there is no legal right for women on maternity leave to have an...
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Ask the expert: unfair dismissal?
Before your employer dismissed you, they should have carried out an investigation into the allegation against you, written to you to invite you to a disciplinary meeting and given you the opportunity to appeal against the decision to dismiss you. If they have done all of this, the only basis that you could dispute that your dismissal was unfair is if the decision to dismiss you was not one that a reasonable employer would have taken in the particular circumstances of your case. If the sole reason is that you failed to follow up a telephone query,...
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Ask the expert: holiday pay for temporary sales staff
Holiday pay is not liable on an agreed sales commission. Holiday pay is only accrued in normal circumstances on the salaried part of remuneration (number of hours worked), and not on any bonus/discretionary aspect.
However, the temporary agency employing the individual would normally know and advise if anything contrary to this was contractually (for some reason) agreed in this case.
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Ask the expert: am I being pushed out?
It is not clear from your email whether you have been consulted about this change in your role or the reasons for it. However, if you are not happy about the change, you should make it clear to your employer that you’re unhappy. Depending on the reason for the move, you will also need to check your contract of employment to see if there is a flexibility clause that allows your employer to change your job role. If you do have this sort of clause, it may make it harder to challenge the move. In any event, if you haven't done so already, you...
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Ask the expert: can agency workers get Maternity Leave?
Without seeing any written arrangements pertaining to your work situation, I would anticipate that you’re classed as a ‘worker’ rather than an ‘employee’ for the purpose of Maternity Rights. As a worker you are entitled to take up to 52 weeks’ maternity leave, but would not necessarily qualify for Maternity Pay (either Statutory or Company). However, you may well be entitled to Maternity Allowance (currently £117.18 per week) which is paid for 39 weeks and you can claim it via Jobseekers Plus. The DirectGov website also gives further information on this matter. However, I would also suggest that it is worth speaking to...
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Ask the expert: my job was made redundant while I was on maternity leave
If your employer is saying that your job is redundant, they should have gone through a redundancy process with you, i.e. you should have been consulted, invited to meetings and undergone a fair selection process with other colleagues who do similar jobs. It sounds as if your employer is saying that you are not redundant as they are offering you an alternative job. However, you are not obliged to accept this if the job is not a suitable alternative. If your previous position was flexible on hours and the new position is not, this may be a good enough reason to...
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Ask the expert: workplace stress
If you feel that you definitely do not want to return to the company after your maternity leave ends, there is nothing to stop you from resigning now if you want to. The company is still required to pay the remainder of your Statutory Maternity Pay (SMP) even if you resign or do not return to work at the end of the maternity leave period. The only downside is that you will not accrue as much holiday pay if you resign now as opposed to at the end of your maternity leave. It is not clear from your email what the allegations...
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Ask the expert: I want to leave early
If you are at the stage where it is making you unwell to physically attend work for the remaining part of your notice period, you have a couple of options. Firstly, you could attend your GP (presuming he is not at the same surgery!) and he may decide that you are suffering from stress/anxiety and may certify you unfit to work for the remaining three weeks of your notice period. Alternatively, you could terminate your employment immediately by suggesting that your employers’ recent actions have damaged the implied term of trust and confidence in the employment relationship and your position has...
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Ask the expert: I feel trapped
Employees with children under 6 years old have the right to request flexible working arrangements with their employer. You state that you “went through the company process” so I am assuming that your company has a procedure laid down for dealing with requests for flexible working and I assume these are following statutory guidelines. An employer can refuse a request for flexible working if they can demonstrate an inability to rearrange work among existing staff; burden of additional costs; detrimental effect on the ability to meet customer demand; inability to recruit additional staff or a detrimental impact on quality or...
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Ask the expert: maternity cover could threaten my post
An employee who returns to work after Ordinary Maternity Leave (OML) is entitled to return to the same job on the same terms and conditions of employment as if she had not been absent. However with Additional Maternity Leave (AML - where more than 26 weeks’ maternity leave is taken) the employee is entitled to return to the same job on the same terms and conditions of employment as if she had not been absent, unless there is a reason why it is not reasonably practicable for her to return to her old job. If this is the case, then...
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Ask the expert: changes to flexible agreement
From the facts you’ve given, whilst your employer (like many employers) is suffering in the current economic climate, it sounds like their actions are unreasonable. You say you received a new contract which I assume was signed by both parties following your request for flexible working under the Flexible Working Regulations? Even though you haven’t worked under the new contract your employer is effectively breaching the contract by now informing you that you have to return full-time (You couldn’t have worked under the new contract as yet due to your maternity leave and any detriment you suffer due to your...
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Ask the expert: changing working hours
If an employment contract has fixed hours written into it (normally there's a clause to say there should be some flexibility which is reasonable and normal), then the employer needs to consult with you prior to making any change to the working hours. It sounds like there's been no prior consultation and also that there's some 'prejudice' about you having children/requiring childcare.
Therefore I would recommend you tell your employer in the first instance that you are entitled to be consulted with about the change of hours and that him/her enforcing a change constitutes a breach of contract which...
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Ask the expert: I have been sidelined
I suggest that you make a complaint in accordance with the company's grievance procedure. If you do not have a copy of this, you can ask HR to provide you with a copy. This will normally advise you to put your complaint in writing to a member of the HR team or to your line manager. You should mention in the complaint that you believe the reason for your treatment is due to having been absent from work on maternity leave. Upon receipt of your letter, the company should investigate your complaints and hold a meeting with you to discuss this. If...
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Ask the expert: suspected pregnancy discrimination
Unfortunately, the rules governing statutory maternity pay (SMP) are fairly complex, but to qualify for SMP you need to be employed for 26 weeks as at the 15th week before the expected week of childbirth. Secondly, between the 23rd week and 15th week before the expected week of childbirth, you need to have average weekly earnings equivalent to the lower earnings limit for national insurance contributions (currently £90). If you are receiving Statutory Sick Pay for these weeks, this will only be paid at a rate of £75.40, so will be below the lower limit. However, even if you do not qualify for...
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Ask the expert: options on return to work
1. Your employer is not obliged to offer you part time work. You have the right to request flexible/part time working when you return from maternity leave, but your employer does not have to agree to this if there are business reasons to reject your proposal. 2. You are entitled to return to work after taking your full entitlement to maternity leave to the job you were employed before your absence. There are two exceptions: a) if your position has been made redundant or b) if it is not reasonably practicable to return to your existing job then your employer can offer...
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Ask the expert: how many personal details do you need to give?
Any employer or potential employer only has a right to know and to ask for information which has relevance to your ability to do the job. Therefore you do not have to reveal age, gender, parental responsibilities, marital status etc on a CV, nor should you expect to be asked about these at interview. Professional employers will be aware of this so be wary of any that do ask for this information (in terms of what they'd be like to work for in the long run!).
I would also suggest that whilst there is still a gender pay...
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Ask the expert: childcare problems
Whilst all employees are entitled to a minimum number of annual leave days, they can only be taken at a time convenient to the employer - ie such that the business is not adversely affected (eg particularly busy periods or when other team members are on holiday/off sick etc). The issue you raised would have to be 'resolved' by coming to some sort of arrangement with your employer and only if they were acting unreasonably might you have some sort of claim for unfair treatment... The other type of leave with statutory requirements associated with it is that normally known...
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Ask the expert: verbal agreements
In law, a verbal agreement can be binding on both parties. However, I am presuming that there were probably no other parties present when you agreed the 4 weeks notice with your boss and that there is nothing in writing from your boss. In the end it would come down to your word against his/hers. Also there is nothing in law that lays down notice times for shift working so that is why you could not find anything in your search.
You have a couple of options open to you.
1) You could put in a formal grievance...
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Ask an expert: maternity rights and contracts
Generally speaking, a temporary or fixed term contract has no special status in law, and if you are an employee (paid directly by the company you perform services for rather than paid by an Agency), you will have all the rights of a permanent employee. In fact, it is unlawful to treat fixed term workers less favourably than permanent workers. If you are on a fixed term contract which is not renewed, it is still a dismissal under law, and has the potential to be an unfair dismissal, depending on the circumstances. Rights during pregnancy You have...
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Ask an expert: maternity pay rights
In UK law, a female is entitled to Statutory Maternity Pay (SMP) if she has been employed continuously for 26 weeks, 15 weeks before the expected week of the baby’s arrival.
SMP is payable for the first 6 weeks of maternity leave at 90% of basic salary and then 33 weeks at SMP rate of £117. In terms of being “employed”, maternity rights are only available for employees on permanent employment contracts and not for those contractor or agency contracts. I have not seen your employment contract or NHS policies for maternity leave and can only assume that their...
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Ask the expert: temporary rights
Legally, an employer does not have to accept the retraction of an employee’s resignation so your employer has acted within the law here. Your question is asking about the rights that someone gets by being an “employee” as opposed to someone hired on a temporary or contractor basis, known in law as a “worker”. This is significant since employees have far more rights under law than “workers”. Only employees can claim the following rights: - Unfair dismissal
- Statutory redundancy payment
- Maternity & paternity leave & pay
- Parental leave
- The right...
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Ask the expert: appealing a flexible work request
All employees who have been working for their employer for 26 weeks have the right to request flexible working to care for a child under six years old, or a disabled child up to the age of 18. However, the right is only to request flexible working, your employer does not have to agree to it if there are business reasons to reject the proposal. Flexible working can cover a wide variety of working patterns, including a request to work fixed shifts. It is not clear if you have followed a formal procedure but if not,...
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Ask the expert: flexible limits
You are correct that there is a statutory procedure laid down in relation to employee requests for flexible working. In summary, on receiving a request for flexible working from an employee, the employer must adhere to the following timelines:
- arrange a meeting with the employee within 28 days of receiving the application to discuss the request. The employee can be acccompanied by a work colleague if they so wish
- notify the employee of their decision within 14 days of the date of the meeting. This notification will either accept the request and establish a start...
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Ask the expert: grievance procedures
One of the rights of an employee when attending a Grievance meeting is the right to be accompanied. This is usually by a union representative or if the company is not unionized, then by a colleague. The employee can choose not to be accompanied and attend the meeting alone.
It sounds like your employer is insisting that you are accompanied. Unless it states somewhere in your employment contract/ Handbook that all employees have to be accompanied at Grievance Meetings, this is not a compulsory requirement and could be pointed out to your employer.
However if you...
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Ask the expert: can my boss force me to go part-time?
A contract of employment exists as soon as an employee starts work and by doing so, proves that the employee accepts that he/she accepts the terms and conditions offered by the employer. Both employer and employee are bound by the terms offered and accepted. Often, the contract is verbally agreed and not written down.
However, as a legal minimum, employees are entitled to be given a Written Statement setting out the main particulars of their employment as long as their employment lasts more than one month.
Most employers will provide a Contract of Employment which covers...
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Ask the expert: contractors' rights
Whilst there are some differences between agency workers and employees in terms of employment rights (ie whether you are deemed a 'worker' or 'employee' under employment law), I will make the assumption that you are employed directly by this company - on temporary contracts that are renewed regularly. So provided that your service with the company is continuous ie that you have been employed by the same company for 2 years or more, you do have certain employment 'rights'.
In summary, you should be entitled to a minimum of 24 days paid holiday per annum (including Bank Holidays), and...
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Ask the expert: can companies have no flexible work policy?
Statutory guidelines applicable to the UK require that in order to be eligible to apply for Flexible Working under the Flexible Working legislation, that you have not made a request in the last 12 months…. Therefore technically the company does not have to consider any application you make until Aug 08.
The ‘blanket’ statement you refer to that the company cannot accommodate Flexible Working at this time sounds highly unusual – whilst they may find it difficult to accommodate requests, the legislation requires that a statutory process is followed and this means each individual request appropriately submitted must...
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Ask the expert: contract work and flexible rights
Contractors and Agency Workers are normally considered 'workers' rather than 'employees' when it comes to interpreting employment legislation. Furthermore, different types of employment contracts as well as length of service / renewal of fixed term contracts can have different implications. Therefore without seeing the full contract/nature of of the contract it is difficult to advise fully. However, it is fairly safe to say that you do have the right to return to an equivalent if not the exact same role after 12 months maternity leave.
Even for permanently employed employees however, there is no right to extend maternity leave beyond...
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Ask the expert: finding flexible work that works for you
It is not clear whether you have made a formal request for flexible working. If you have only had verbal discussions about changing hours then you should consider making a formal request. There is a set procedure that should be followed which states that the request should be made in writing and should give details of the changes to hours that you are requesting and the reasons for the request. Upon receipt of this your employer is legally obliged to meet with you to discuss the proposed change within 28 days.
Unfortunately, the right is only to request flexible...
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Ask the expert: negotiating flexible working
All employees who have been working for their employer for 26 weeks have the right to request flexible working to care for a child under six years old, or a disabled child up to the age of 18. Flexible working can cover a wide variety of working patterns, including a request to work fixed shifts. However, the right is only to request flexible working - your employer does not have to agree to it if there are business reasons to reject the proposal. There is a set procedure that should be followed when making a request to work flexibly.
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Ask the expert: working during maternity leave
During maternity leave, an employee is under no obligation to do any work relating to their job since this period is designed to give a female a break from the working environment as she prepares for the birth of her child.
You indicated that your maternity leave starts on 29/2/08 which I am assuming has been formally agreed with your employer in writing since there is a legal process that employers must follow in relation to the start and end dates of maternity leave. With regards to working between then and the due date of 8/4/08, it is your...
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Ask the expert: when flexible working is denied
When an employee returns from maternity leave, she is entitled to return to the same job or a job that is similar in scope, level and knowledge. An employee also has the right to consideration from her employer to a flexible working request. The request can encompass reduced hours, part time working or job sharing. It sounds like you have been reasonable in your request for flexible working, having changed your initial request of 3 days per week to 5 days at reduced hours per day to ensure your presence in the office every day. However, it sounds like progress...
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Ask the expert: sickness leave
The question here relates to whether an employee’s salary increase can be affected by their sickness record. Legally there is nothing to stop an employer including an employee’s sickness absence as a factor when deciding on salary increases. However, the process in which the employer does this will be affected by the law.
Ultimately, the starting point would be to see what policies currently exist relating to sickness absence since, if it is already laid down in your Employment Contracts or Employee Handbook, the employer is within their rights to continue this. However, the indication in the question is that...
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Ask the expert: pro rata bank holidays
This question is not as straightforward as it sounds since it depends on the working pattern of the employee and her fellow colleagues and also what is laid down in her contract of employment or in a Company Handbook, if one exists.
Legally, part-timers should not be treated less favourably than comparable full-timers in their entitlement to public/bank holidays. Allowing full-timers the day off, but not part-timers, is clearly less favourable treatment and unlawful. To comply with the law, in some circumstances employers may give workers a paid day off if their day of work happens to coincide with...
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Ask the expert: flexible working rights
This question revolves around flexible working. Employees with children under 6 have a right to formally request more flexible working arrangements. Employers have the duty to consider requests properly.
If your current working arrangement was agreed via a formal request from you to work flexibly when you came back from maternity leave, then that was a permanent change to your employment contract. In this case, your employer would need to consult with you formally before any further changes could be made to it. If they do not consult with you then you could claim a breach of contract....
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Ask the expert: when to request flexible changes
Under the governmental statutory regulations you are entitled to apply for a change to your Flexible Working arrangements provided you have not requested a change to them in the last 12 months, and you are requesting the change in order 'to care for your children'. Whilst your older child is not starting school until the following September, the reason for requesting the change doesn't necessarily need to be just due to school times - but as stated above, in order 'to care for the child'.
Providing that you follow the appropriate procedure when putting forward your request (either the...
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Ask the expert: rights on return
From the information you have given I think you are considering asking your employer if it's possible to either work part-time or perhaps to change your working hours/arrangements to try to accommodate your childcare and looking after your baby. Legally, an employee is entitled to apply for a change in their working arrangements under the right to Request Flexible Working regulations providing they have a child up to the age of five. Therefore following your maternity leave, you would be entitled to make an application to your employer under this legislation. Providing that you follow the appropriate procedure when putting...
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