Q&A with Which? Legal Service
Which? Legal Service, the not-for-profit charity group, offered the expertise of its team of lawyers to help answer your questions about employment rights in May 2010.
Q. FutureMum: I am currently pregnant and at risk of redundancy within two months (as part of restructure). Desperately trying to compete for internal roles. My question is: what rights have I got if I am unsuccessful and made redundant this summer (I'm currently pregnant but not on maternity leave)? I would qualify to take maternity leave before my redundancy comes into effect. I have heard of the Maternity and Paternity etc regulations, which my employer seems to be ignoring with other colleagues. Is this legal? Would I gain any extra rights regarding being offered alternative suitable vacancies if I was to go on maternity leave before the date my redundancy comes into effect?
A. Which? Legal: If you are under consideration for (or notified as being at risk of) redundancy while on maternity leave, you must be offered any reasonably suitable alternative employment that may be available*. Failure to do this on the part of your employer will render the dismissal for redundancy automatically unfair. However, the right only arises (a) if you have actually commenced maternity leave (and are not merely pregnant but have yet to start your maternity leave), and (b) if a suitable alternative position actually exists. *Reg. 10, Maternity and Parental Leave Regulations 1999.
Q. Jcee: I'm currently on maternity leave and due to return to work in December. My employer has just announced that they are relocating most (but not all) of my team to another office which is 50 miles away. It is unclear which posts will remain in our current office and which will be moved to the new location, but my employer has stressed it will only be a handful of posts which stay at the current office and so most people should expect to move.
I'm unclear of my rights with regard to my return to work and location. Also if I don't want to move to the new location, when does a relocation become grounds for redundancy?
A. Which? Legal: It is difficult to advise on this before knowing whether your post will be among those moving. If it is, it fits the statutory definition of redundancy, which includes situations where the work you are employed to do is moving or has moved to another location. Potentially, therefore, your employer would be dismissing you fairly, by way of redundancy.
If your employer does not want to make you redundant but insists on you moving with your post, much will depend on whether there is a mobility clause in your contract. However, even if there is, an employer has to operate the clause reasonably in order to rely on it to require you to move rather than have to make you redundant and pay you redundancy pay.
If in your situation it is not reasonable to expect you to undertake a 100-mile round trip per day, and your employer refused to pay you redundancy pay because you refused to move with the work, you would have a legitimate claim at an employment tribunal for redundancy pay. I think it would be quite likely that with a new baby, an employment tribunal would find for you in such a claim (although I can give no guarantee).
If there is no mobility clause, the same job at a location 50 miles away would, in my view, be very unlikely to qualify as reasonably suitable alternative employment (an employer is entitled to withhold redundancy pay if an employee unreasonably refuses an offer of reasonably suitable alternative employment). Of course, regardless of the existence of a mobility clause or not, there would be nothing to stop you accepting moving with the job if you preferred to do this rather than be made redundant.
Q. Sillysow: I am currently on maternity leave for a full 52 weeks. The last three months are unpaid in respect of SMP and company maternity pay. Is there anything to stop me doing a small amount of casual work in order to get by, so long as it is taxed in the usual way?
A. Which? Legal: I presume you are referring to the unpaid final three months of your maternity leave. If this is the case, I can see no bar to your undertaking part-time work unless your contract of employment prevents this - if it does, you could always exercise your right to return to work at the beginning of or during this period. You should be aware, though, that the income from such work will be almost certain to affect/reduce any state benefits that you may be getting during that period (eg Income Support, Council Tax Benefit, Housing Benefit).
Q. Attenborough: It looks as though my job may be transferred to another company under TUPE at the end of the year. I know that I'm entitled to everything that's in my contract of employment, apart from pension rights, but what about policies which aren't specifically included in the contract, like maternity? Would a new company be required to uphold the old company's maternity benefits, even if I'm not pregnant at the time of the transfer?
A. Which? Legal: If your current employer provides maternity pay or benefits in excess of the statutory minimum, whether or not the rights to these will transfer with you will depend on whether they are discretionary or contractual. Although you say the maternity benefits are not specifically mentioned in the contract, it is still possible that they form a contractual entitlement.
In deciding whether they are contractual or not, much will depend on (a) how these benefits are stated to operate and in what documents, (b) how the availability of these benefits has been notified to staff, and (c) whether they have been consistently and universally applied. Whether or not you are pregnant at the time of transfer will not affect the matter.
Q. Pixiestix: I'm going on maternity leave in the autumn, and I am entitled to 22 weeks full pay, then 17 weeks SMP. My boss has told me that I will only qualify for holiday pay/leave for the 17 weeks SMP, not for the 22 weeks before that. Our holiday year runs from Jan-Dec, and we get 28 days. I will have used 20 of these by the time my leave starts, and will lose the eight others, according to my boss. Does this sound right?
It's only a small company, (and she is in charge of all the HR stuff) so she has told me that there is no maternity policy to view, and that I will get all the information I need at 25 weeks when I hand in my MATB1. So I have nothing in writing to either back up or contradict what she says.
A. Which? Legal: You accrue paid annual leave (which for a five-day per week worker is minimum 28 days per year, provided for by the Working Time Regulations 1998, as subsequently amended) throughout both ordinary maternity leave and additional maternity leave, the total of which can be up to 52 weeks (if you take your full entitlement). As you cannot be required to take this leave or previously-accrued leave during your maternity leave, it will fall to be taken on or after your return.
Q. UserNameAngst: Does my company have to give me the seven bank holidays that were during my ordinary maternity leave? My contract gives me 24 days and bank holidays are counted separately.
A. Which? Legal: There is no entitlement for you to have further days added on to your outstanding holiday entitlement for bank/public holidays that occurred while you were absent on maternity leave. However, you should be aware that if you normally work five days per week, the Working Time Regulations 1998 (as subsequently amended) entitle you to a minimum of 28 days per year paid annual leave, although the employer can require you to take bank/public holidays as part of this paid annual leave entitlement. Therefore, if you are a five-day per week worker, your employer is, by only granting 24 days per year and saying that they are not requiring you to take bank/public holidays as part of this, four days short of your minimum statutory entitlement.
Q. Angelaspangela: I was made redundant at Christmas and have been doing freelance consultancy since then. I want to get pregnant. How does maternity allowance for self-employed people work? What period do they use to calculate the allowance?
A. Which? Legal: Unfortunately, this is out of the scope on what Which? Legal Service can advise on as we can only advise employees, not the self-employed and maternity allowance is a state benefit, and we do not advise on these. You may be able to get advice on this query from a Citizens Advice Bureau.
Q. ceeebeee: A colleague and I, both on maternity leave, have been made redundant. I am convinced that we were targeted specifically, though of course the company deny this. When I asked to see my scores, I realised, firstly, that there were some selection criteria that the employee rep (>20 jobs went in company in total) had not made me aware of, and secondly, that there were selection criteria such as current need/business need. I scored really low on this - obviously wasn't working on any projects while on maternity leave, so my manager had to give me a score based on whether they felt the business needed me. I can't see how this is an objective criterion - is this fair?
A. Which? Legal: One of the procedural requirements for a redundancy dismissal to be fair is that the employer should have used fair selection criteria. If you think that the employer has not done this, you can enter an employment tribunal claim for unfair dismissal, citing this ground. It will then be for a tribunal to decide whether the criteria used were fair or not.
The law does not state what constitutes fair criteria; it is for tribunals to decide whether any criteria placed before it as grounds for an unfair dismissal claim are fair or not. Fair criteria may be different from one job or industry to another. Any claim entered to an employment tribunal for unfair dismissal must be entered no later than 3 months following the last date of employment. Form ET1 will be needed, obtainable from tribunal offices or Citizens Advice Bureaux.
The claim can also be entered online, via www.employmenttribunals.gov.uk. If you have grounds for thinking that you have been less favourably treated because you were on maternity leave, you can include a claim for sex discrimination on the form. The same time limit applies.
Q. ceeebeee: They also had been deducting my childcare vouchers from my SMP - I queried this before my redundancy and it was only after I appealed my redundancy and added this to the appeal that they've agreed to refund this money, though they're saying that I'm at fault because I still wanted childcare vouchers while on maternity leave. Is this true? They're also wanting to tax this money - if this is a childcare voucher payment surely it isn't meant to be taxed?
A. Which? Legal: As you have had this money refunded, there is no advice for us to offer about the recovery of this. Unfortunately, tax issues are outside the scope of what Which? Legal Service can advise on.
Q. LeninGrad: Regulation 10 of the Maternity and Parental Leave Regulations 1999 says that if a woman is on maternity leave and her position becomes redundant she must be offered any suitable alternative available. Do you take this to mean that she does not have to go into a pool from which redundancies are selected? Neither does she have to participate in any restructured post interviews etc? Has this ever been tested in the courts?
A. Which? Legal: It does not mean that she does not have to go into the pool. This is because the pool applies to her original job; at this stage the question of alternative employment does not yet arise, as Regulation 10 only comes into play once the employee is selected for redundancy. If she is selected for redundancy (by use of fair selection criteria; being on maternity leave cannot be part of the criteria, but cannot exclude her from the pool), Regulation 10 gives her priority over others selected for redundancy for a suitable alternative position if one exists, as an alternative to being made redundant; the employer has to offer her that vacancy.
However, Regulation 10 does not prevent an employer from interviewing her to ascertain whether or not she and the job are suitable for each other. If the suitable alternative vacancy exists and the employer does not offer it to the employee on maternity leave, the redundancy dismissal of that employee will be automatically unfair. The Regulation does not need to be tested in court; it applies. Only disputes as to non-compliance, interpretation or meaning would fall to be tested in court, and claims of unfair dismissal for non-compliance have certainly been brought and won.
Q. Doihavetopayitback: I would like more information about the recovery process and when (if at all) this debt will become statute-barred. My current circumstances are that I am being supported by my new partner and am soon to become a student for three years. Therefore, there is no money spare to make any repayments.
Due to a huge mistake by my previous line manager, I was overpaid nearly £1,000 by my employer last year. She rang to tell me after an audit picked it up and I said I hadn't received payslip so hadn't had a chance to look at breakdown but was surprised at amount of pay. My housing benefit was stopped because of the pay and I had to fight and undergo a lot of stress to get a letter from HR detailing what I should have been paid.
Eventually, three months later my housing benefit was paid but I nearly lost my home because of her mistake. I have not received anything official from my employer regarding paying it back and I verbally asked them to write it off and said I would be in hardship to pay it back. Plus, due to all the stress and upset, I felt they should also consider writing it off. I had to make phone calls every other day to either my line manger, her line manager, HR or housing benefits. I may as well have been off sick and receiving sick pay as it had a terrible effect on my health.
I am now on an unpaid career break from work, and HR have said verbally they would ask for it to be paid back when I return/or resign (which is about three years away minimum and I could extend this to five years and I am very tempted to do so). They would look at hardship when they request repayment. However my circumstance now are hardship and if they considered it now I think they would have to allow it. I think they are delaying so they are in a stronger position.
What rights do I have? The only letter I have received is one detailing what I was paid in error and what I should have received. I think it says they will contact me shortly regarding repayment....and that was seven months ago. When I receive my P60 I expect the gross pay will include the overpaid amount. I have had to give tax credits the amount shown on month 12 payslip (which includes the overpayment).
A. Which? Legal: Generally if an overpayment has been made as a result of a mistake it is recoverable by your employer. However, if as a result in the delay of your Housing Benefit you changed your position and incurred additional expenditure then you may be able to defend a claim for the overpaid wages. In addition, you could argue that paying the tax credits for the additional sum constitutes a change of position also. However, if no loss was incurred and the Housing Benefit was eventually paid and then it may be difficult to defend the overpayment.
Another factor to consider will be your knowledge of the overpayment and the timing of it. The length of time between when your line manager rang you and when your Housing Benefit was stopped will be a relevant factor. Accordingly, I would advise you to get some more in-depth legal advice in relation to this matter.
Your employer would have up to six years to bring a claim against you for recovery of the money that has been overpaid from the time when the payment was made, after that it will then be statute barred. If your employer successfully claimed back the overpaid wages then you should seek a credit for the Tax credits given.
Q. CaptainNancy: I am very interested in the legal position regarding overpayments. I have chased with HR many times now, so has my manager. They haven't sorted it out. It's gone into a new tax year, so my tax will be paid wrongly on it etc. Can I keep it after a certain period? My manager has left now too, with no new one appointed, and may not be due to public sector staffing freeze.
A. Which? Legal: Unfortunately, tax is outside the scope of what we can advise on. I would require more information about the nature and size of the overpayments in order to be able to advise you as to whether your employer is entitled to recover the money. What I can tell you without such information is that any action by the employer to recover any alleged overpayment(s) must be taken within the six-year time-limit imposed by the Limitations Act 1980.
Q. Millie Mummy: I have found out recently that I am at risk of redundancy. My post is going to be cut as the loss of it is seen as not a big risk to the organisation. The reason it is not going to be a risk is that some parts of my work - including what is defined as my primary job function on my job description - have been given to two new posts which were created about 12 months ago.
At the time the new posts were created I asked a few questions, although not formally, and I was given vague, verbal reassurance that my role was still clear. In hindsight I should have asked for written confirmation of the effect of the new posts on my future position in the organisation, but hindsight is a wonderful thing.
Where do I stand? Is it too late to do anything? The two new posts are filled by women so not sexual discrimination. I have worked for the organisation for 15 years and have a perfect employment record.
A. Which? Legal: If the work you are employed to do is ceasing, reducing, or moving to another location, or the employer's requirement for the number of employees to do that work is ceasing or reducing, it is, in law, a redundancy situation. Redundancy would, therefore, be a fair reason for dismissal. You may have an argument that by hiving off of some of your functions to new posts a year ago, that was the first step in deliberately targeting you personally for redundancy and that the dismissal would be unfair as a consequence.
However, all your employer would have to do to defend a claim brought on this basis would be to show that the reduction in work has occurred after that. I would add that as you are at risk of redundancy, it is a procedural requirement that the employer must consult meaningfully and adequately with you about any possible alternatives to redundancy, the chief of which is usually any alternative employment. Failure to consult will be likely to render unfair a dismissal for redundancy that would otherwise be fair.
Q. ceeebeee: During the consultation period of my redundancy I was advised by ACAS to lodge a formal grievance about me not having a meaningful consultation (questions were not answered until the last possible moment so that I couldn't actually ask any further questions on the answers given) - taking care to label all correspondence as such - so that they would meaningfully consult with me before my redundancy was made final.
I received a reply saying that they were not going to accept it as a grievance and instead would accept it as an appeal (even though the redundancy was not yet final). They also said that I was not allowed to use any of the issues I'd raised as grounds for a further appeal. When I questioned the fairness of this, they said that they'd done this after taking legal counsel. Are they allowed to take away my right to appeal before the redundancy is final?
A. Which? Legal: Any discussions between you and your employer that take place before you are given notice of termination of your employment for redundancy are, in fact, part of the consultation process. You cannot appeal against selection for redundancy until you have actually been selected, rather than merely being still at risk and thereby being consulted with. The ACAS Code of Practice on grievances gives you the right to enter a grievance about anything you are unhappy about, while you are still employed. If the employer fails to deal with the grievance, or refuses to accept it, this may, in theory, at least, give you grounds for resignation and bringing a constructive dismissal claim.
In practice, however, you would be better served by claiming to an employment tribunal that the dismissal was unfair because of a failure to consult (both because of the lack of consultation and the failure to hear your grievance about this). Further, if your employer's restriction on what you can argue as your grounds for appeal makes the appeal pointless or a sham, this renders the appeal process flawed, which will be likely to lead to an employment tribunal finding that that the dismissal for redundancy is, in fact, unfair. The appropriate level of compensation will then be ordered by the tribunal to be paid by the employer.
Q. Leningrad: Are employers under any obligation to consider allowing you to work flexible hours or not require you to work abroad, for instance if you're breastfeeding?
A. Which? Legal: If you have carer's responsibilities, you have the right to ask for flexible working. The employer has a duty in law (imposed by the Flexible Working [Eligibility, Complaints and Remedies] Regulations 2002, as amended, and the Work and Families Act 2006) to give serious consideration to the request and to respond to it. They must agree to the request unless they can show that agreement would place an unreasonable burden on them.
If there would normally be a requirement to travel abroad, a request not to have to do this during the period while you are breastfeeding would, in effect, be a request for flexible working. An unjustified rejection of a request for flexible working may well, in addition to breaching the above-mentioned legislative provisions, also constitute sex discrimination.
Q. Sonnet: I currently work four days a week and have done for eight years now. I am under pressure from my boss/the company to increase to five days. This is not due to an increase in work as I currently do not have enough to do to fill four days. Do they have to get my agreement to increase to four? Can they force it ie take it or leave it, or could I argue that my current role is 'redundant'?
A. Which? Legal: Neither party to a contract, be it an employment or any other sort of contract, has the right to change the contract without agreement from the other party. In other words, your boss cannot force you to increase your days to five. It is up to you whether or not you agree to it. If you don't agree to the change, the existing terms of the contract continue, the ball is back in the employer's court and you will have to see what, if anything, the employer then does.
If your work has reduced, there is nothing to stop you arguing to your employer that this equates to a redundancy. However, you cannot force your employer to make you redundant as an alternative to the employment contract continuing, if the employer does not wish to. The employer will, of course, have to continue to pay you in line with the terms of your continuing contract of employment if he does not wish to make you redundant.
Q. angrybird: My employer has adopted the policy that if anyone wants to reduce their hours from full time to part time they must drop down to a half post (17.5 hours per week). There is no flexibility around this. Also, the other half of the post is gone once someone takes it up. We are not able to reduce hours for a period of time, then resume full time later on. This is a change of policy from them and I wonder whether they are safe legally to do this?
A. Which? Legal: Employees with caring responsibilities have the right to ask for flexible working to accommodate or facilitate their caring for another. The employer is required to consider their request. The employer can, in law, reject the application if it can show that agreeing to it would place an undue burden on the employer, or that it would cause undue difficulties (essentially the same test). If the employer rejects without having this ground for rejection, the employee may have grounds for a claim to an employment tribunal for damages.
If the employer agrees to part-time working as a result of such a request, the employer cannot be compelled to allow a resumption of full-time working later if they choose not to; it is the employer's choice, unless in negotiating the part-time/flexible working both parties have agreed it to be for a defined limited period.
For certainty, any such agreed time period should be enshrined in written form. Note that the legislation relating to the right to request flexible working only applies to employees with caring responsibilities - employees without such responsibilities are free to ask to work flexibly or to work part-time, but it is entirely up to the employer whether to agree or not. The employer can reject the request for any reason or none.
Q. Sianimac: I work shifts. My boss often pressures us to change shifts at very short notice. Legally how much notice do employers need to give if they insist that employees must shift swap? How far in advance should a rota be received?
A. Which? Legal: If you work regular hours these will be determined by the contract of employment. In the case of shift work, how the shift rota will operate will also be governed by the contract and/or any collective agreement with a trade union (if there is one). There is nothing in law that determines how far in advance you are entitled to notice of your shift; again, this will depend on the terms of the contract and/or collective agreement.
Without knowing what (if anything) these say about how the shift rota will operate and how shifts will be allocated, I cannot give more detailed advice. You should be aware that a change of shift should not infringe your entitlement (under the Working Time Regulations 1998) to a minimum of 11 hours off between working days.
Q. cymrumam: I am employed on a full-time contract from Tuesday to Saturday - so hence it is very rare that my working week falls on a bank holiday. I queried this a couple of years ago as my colleague works Monday to Friday and had the same holiday entitlement but obviously got all the bank holidays off, and they upped my holiday entitlement from 20 to 24 days as a result. My original contract states "You will be entitled to 20 days holiday per annum"; "You are entitled to all recognised public holidays in England and Wales. Such holidays shall be granted with full pay". Should I therefore now be entitled to 28 days plus bank holidays? Or is it as I get now 24 days plus relevant bank holidays when they fall on a working day?
A. Which? Legal: The Working Time Regulations 1998 (as subsequently amended) provide that a minimum of 5.6 weeks per year paid annual leave (holiday) must be given. For a five-days-per-week worker this amounts to 28 days. There are eight public (or bank) holidays a year, and the employer can require an employee to take any or all of them as part of the 5.6 weeks entitlement if they fall on days which the employee would normally work.
If the employer is not requiring an employee to take paid annual leave on public holidays, but merely tells them not to come to work on the day (in other words, just gives them the day off with pay), the minimum paid annual leave (holiday) entitlement remains at 28 days paid annual leave (holiday). In such cases, as the employee is not being required to take public holidays as part of the 28 days it follows that the question of what happens on the 8 public holidays is over and above the entitlement to the 28 days.
Looking aside from the question of paid annual leave for the moment, employees need to realise, though, that the law does not entitle employees to take public holidays off with pay as of right; it is up to the employer whether or not an employee (who would otherwise be scheduled to work on a day on which a public holiday falls) is required to work for their pay on a public holiday, or given the day off. Either way the employee is entitled to their normal pay for the day. It can be seen from this that if the employer does require the employee to take all the public holidays as part of their paid annual leave (holiday) entitlement, the remaining entitlement is reduced to 20 days.
From the words used in your contract, your employer is not requiring you to take public holidays out of your paid annual leave (holiday) entitlement but merely giving you these days off with pay as a contractual right. Therefore you should have 28 days holiday over and above public holidays. It may help to realise that there is a difference in law between being allowed (either at the employer's discretion or, as in your case a contractual right) not to have to come to work on public holidays, and being required to take these off as part of the paid annual leave (holiday) entitlement.
For the latter to apply, it must be specifically stated (and agreed) either verbally or in writing. It is always possible, of course, in cases where an employee would be due to work on a public holiday and the employer is not prepared to just allow the employee not to have to work on that day, for the employee to voluntarily take paid annual leave on such a day as an alternative to having to work it.
Q. purepurple: If I work overtime can my employer insist that I get time back instead of extra pay? I work in a day nursery with around 20 members of staff. The manager insists that we all have to attend staff meetings after work and open days and fun days on a weekend. The hours are then added up and we can take time off. Except, because the manager has to maintain ratios it is very difficult to actually take the time that is owing (and I am not convinced that the tally kept is accurate). Can I ask for the extra hours as pay instead?
A. Which? Legal: Unless your contract of employment provides that you will receive pay for overtime, you have no means of forcing the employer to pay for the extra hours, although you can, of course, ask for this. If the employer will not let you take the time off within a reasonable period, you may have a breach of contract claim in the county court.
Q. BigBadMummy: I run a company where all the people who complete tasks for me are self-employed. I send them the job request, they complete the task and then invoice me, and I pay them. I suspect that for some of those self-employed people I am their only source of income (ie they do not look for work elsewhere). This concerns me. Should I be worried? And insist they find additional work elsewhere or will the Revenue assume I am trying to avoid employing them. Which I am not!
A. Which? Legal: Unfortunately, we are not able to answer this query as we cannot advise employers due to possible conflict of interest.
Q. justamoment: I want to employ my currently unemployed sister (who herself is a parent) as my part-time nanny. Please can you advise me on tax responsibilities etc. Is it correct that she cannot be self-employed as a nanny?
A. Which? Legal: Unfortunately, this is out of the scope on what Which? Legal Service can advise on as we cannot advise employers or prospective employers due to possible conflict of interest and we do not advise on tax issues.
Q. Kittya: My aunt is a carer in the community and due to retire in two years. She has a new boss. Early last year she was accused of stealing a statue from an elderly client and was suspended pending investigations, the item was then found in the elderly lady's house and my aunt received a full written apology.
Now, someone has accused her of swearing at a client and being rude. The elderly lady can't remember which carer it was, but said she had blonde hair (my aunt has blondish hair). Her new boss says it was my aunt and has officially recorded this. It is very upsetting and stressful, as you can imagine. My aunt's boss has said: "That's two incidents on your record now, one more and you are out." This is after 25 years of impeccable service.
What should my aunt do? She works for the council. She has been trying to get in touch with her union rep for two weeks but so far without success. She is really suffering and fragile.
A. Which? Legal: Your aunt can enter a written grievance. As she works for a local authority, they will have a grievance procedure which she can use. It is possible that what you describe may give grounds for bringing an employment tribunal claim for constructive dismissal.
However, such a claim cannot be brought without first having resigned, so your aunt would have to give up her job and income in return for an indeterminate chance of succeeding in an employment tribunal claim, with no guarantee of any damages awarded being sufficient to compensate adequately for the loss of her employment.
Q. coveredinsnot: If I am undergoing medical tests (eg with a cardiologist) am I obliged to tell my employer about this, even before test results come through? And once they do come through, am I obliged to tell them about the results as well?
A. Which? Legal: You do not have to tell your employer about the tests or the results. However, if the results indicate a condition that may affect the job you do and you want the employer to take steps to help you, it would be prudent to do so.