Is this legal?(15 Posts)
I had a coffee with a friend yesterday and she was very distressed as a result of a conversation with her boss,I'm going to try and include as much info as I can and hope I don't forget anything.
She has worked in the same place that has been owned by the same people the entire time she has worked there she has been there 10 years.
She has always worked the exact same hours on the same days every week her hours total 16 and she does 2days a week but the actual days she works never changes.
She has never had so much as 1 day off sick.her only absence has been paid holiday and 1 maternity leave. She has to take her holiday in week blocks is not allowed a day here and there so she refers to 2 days holiday as one week(obviously she knows its only 2 days) she is only allowed 4 weeks a year so 8 days. Her ML totalled 12 weeks.
She's currently 31(possibly 32) weeks pregnant and was intending to work up to the day before her due day.
She has 2 children one is 14 and significantly disabled requires full time care and attends a special school part time.
Her 16 hours are paid at the NMW so she does not earn enough to qualify for smp.
Her job is in a tiny independent shop
Right to the thing that has upset her she has a problem with walking she can do it but she is very slow its related to her pregnancy,her boss (carrying out the instruction of the owner) has told her she has to produce a fit for work cert or letter she cannot produce one as her consultant or gp are not happy to do so,so she had to start her ML ASAP
She's not so much bothered by this but the same day they told her this they also told her they are changing all her hours so if by some sheer fluke she gets a fit for work confirmation from next week (or when she returns) her hours will be broken up over 4 days instead of 2 apparently this is none negotiable.
This will result in her children being in childcare (one minder one carer) for 22 hours PW instead of the 19 they currently have and trying to replace the carer due to the current one being unable to cover the hours she has been told she has to take or what is more than likely having to quit working.
She has never been given a contract despite asking for one.
The owners justification for this appears to be that he feels she is a casual employee and even if she was not she has no contract so he can do what ever he wants.
She feels that crap work is better than no work and is very concerned about being able to get a new job.
I have explained to her that she cannot possibly be a casual employee and that custom and practise is relivant to her and him not giving her a contract is not something that goes against her as legally she has an implied contract and that its something that if anything would go in her favor not his.
But she cannot get legal aid for employment issues and she's very frightened that they just want rid of her.
Should add I did post this in legal and it was suggested I repost it here
If she's always worked the same number of hours in the same pattern those are her permanent terms and conditions.
She is entitled to 5.6 weeks holiday, not 4, although this can include bank holidays if she gets those off as well.
Has she checked whether she is entitled to Maternity Allowance?
Why is her GP not happy to give her a fit note? Does he/she think she is fit to do her job or not?
Because her working pattern and hours are her permanent terms and conditions they cannot be changed just like that. Her boss needs to seek her consent first. If your friend refuses to consent to the change, there may be ways the boss can force it through if there is a genuine good business reason, but he can't just change it like that.
Her lack of contract in no way reduces her employment rights. She is in a good position, being pregnant, as if her boss tries to get rid of her now with no justification, it will look to anyone as though her pregnancy was all/part of the reason.
What does she want to do?
The lack of fit note is because the gp thinks a rest would do her good.
She will be getting MA I did the paperwork for her,had heck of a problem because the owner of the shop refused to give her evidence of no smp and kept on losing matb1's
She gets no bank holidays off as they do not fall on the days she normally works when Christmas does she's had to take that as part of her 4 weeks.
If the GP thinks she needs rest surely he/she should issue a fit note saying not fit for work at all? If her GP doesn't think she's fit to work at all he/she should provide a fit note to that effect and your friend will be off sick. Maternity leave doesn't kick in until 4 weeks before her due date if she's off sick.
Sounds like she's owed some holiday then if all she's getting is 8 days rather than 11.5...
Can she should join a union promptly - she's entitled to pro rata bank holidays, I think - best place for employment advice etc?
Off thread, but if she is signed off as unfit to work, she should get sick pay (if entitled) til 36 weeks. Work can't force her onto ML before 36 weeks.
Is it worth posting this on the Citizens Advice sticky thread? They should have the right info on this.
I think as a part-time worker she is still entitled to something for bank holidays as all workers must be treated equally so, if she works 2 days in 5, she should be entitled to 2/5 day per bank hol but this can be included in the holiday allowance.
The legal minimum is as flowery said 5.6 weeks regardless of how many days she works or whether bank holidays fall on her working day
I employ a student for 1 day a week in a Saturday & she still gets 5.6 days holiday per year
Retry much everything flowery has said is correct.
She doesn't earn enough to qualify for SSP I'd imagine next.
Also doesn't sound at all like she has been paid holiday correctly and as flowery said, they are on shaky ground if they try to alter terms at this stage in her pregnancy.
They cannot force ML to start at this stage. Check out Acas site for info and get her to call them for advice, they will clarify her position for her, and possibly intervene with her employer on her behalf with regards the holiday. 47 47 47 Acas
Only thing I'd add to the above is that if this impinges on her responsibilities as career for a disabled child, then it sounds like an Equalities Act matter. Changing her flexible working terms, making it difficult for her to fulfil that protected role may amount to discrimination.
She needs legal advice. If she's a union member, that should be her first recourse. Otherwise, Citizens' Advice, or one of the carers' charities might be able to help her.
Correct she does not earn enough for ssp or smp.
I went to hers today and got her to phone acas who agreed with you all, so am just about to try and get her a union membership
While I support her joining a union, be aware that they often won't take on existing cases - my union wants people to have been a member for at least 3 months (I think) before it will take on a case.
They might do it, but don't be surprised if they don't.
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