Disciplinary whilst pregnant

[EJT91]

HELP!!

I received and email yesterday inviting me to a disciplinary hearing for gross misconduct. The letter states they have received an allegation (?!) that I am working for another company whilst contracted to them. There was no evidence attached for what was found in the investigation and the letter also states that if the allegations are upheld then I will receive a warning. It might be worth noting that I am 25 weeks pregnant. I haven’t slept a wink worrying about this or eaten. The only thing I can think is that my tax code has changed. My partner has innocently
put me on the payroll for his company to start transferring money to me to help while I am on maternity leave. This has changed my tax code. I do the invoicing on a Sunday afternoon after he leaves for work and it has absolutely no affect on my contracted job and is a completely separate role and industry to the one I am employed to do by them. I feel like this particular director has been gunning for me since I announced my
pregnancy. I am the first female in my role to have a baby and she hates the fact I am no longer able to fulfil my entire role, due to health and safety reasons as set out by occupational health. so it feels
like this is very much a targeted attack on me. I didn’t let them know about my extra income as it’s just a couple of hours a week, outside my working hours, so I didn’t realise I needed to advise them. I’m obviously going to apologise and explain I wasn’t aware etc, but has anyone got any advice? I feel sick to my stomach. I’ve never been in trouble with work before and have an excellent record. I’m barely off sick, even through pregnancy. I’m going to ask for evidence to be sent over to me today so I can prepare my case. I have a work contract for my “side role” which states my working hours and also the day I’m
contracted to work, so they will see it doesn’t clash with my main role. Any advice for going in for this would be great. I have major anxiety and as I’ve said, I’ve not really slept all night worrying they will sack me and I won’t get my maternity pay 😞

@EJT91 What's the plan for maternity leave? You've said you won't work it, but your 25 weeks pregnant, so it probably looks a bit unusual that you've started a new job now, and not let them know.

I'm not suggesting that your partner has done anything wrong, but the timing doesn't look right, and given it is a breach of contract, they've started proceedings. It's a bit heavy-handed and not ideal when you're pregnant but also not incorrect, they don't have to do an informal chat first.

Go prepared to explain the plan. It doesn't seem like it makes sense yet, but I presume there is a plan and a reason. They may want reassurance that this isn't part of your exit plan after mat leave.

Thank you for your kind words. Men never understand. There’s so much more to this and being pregnant is very relevant! Especially, with my rights that have been outlined to me by acas.

@EJT91 you'd be well-advised to take Bucketsof's advice here.

You have broken your contract. Whether an employment tribunal would consider the contract reasonable or not for reasons specific to your role is another matter. But the company is not being unreasonable enforcing what is in there, on the face of it, and you won't be able to use this point to prove pregnancy discrimination. There are a lot of good reasons why this clause exists, conflicts of interest being one. (It's a bit daft to try to argue the company doesn't have evidence - you've admitted it's happening and there's been a change in your tax code!)

You should separate the issues pertaining to treatment of you during pregnancy from this one.

Yes, of course women can be discriminated at work during pregnancy but not reading your employment contract doesn't count as one.

People who don't understand why its beneficial as a self employed person/business owner to split dividend/salary payments between 2 people in the same house hold really shouldn't be advising you on how to best progress with this situation.

Sorry you're going through the stress and hope that the information provided to you in the meeting is clear. You can ask for time to review it and respond rather than providing a response immediately if you want to - don't feel pressured into answering. Speak to your union rep if you have one, or a family law solicitor with regards to company car policy, built up holiday agreements, time off for appointments and any other necessary adaptions needed for pregnancy during your remaining time before Mat Leave.

If it is brought up about your "second job", then you have the right to bring up every other person doing the same and use this in your defence. Whilst they cannot discuss individual cases with you, if you note this in the meeting and ask for it to be minuted, it will help if you need to go to tribunal. if you are being treated differently to your colleagues, then this will help in a tribunal. but you will need to ask the direct questions as to why it is ok for other people to do this but not yourself. If they note it is ok for people to run businesses but not take a salary, their policy must implicitly state this for it to be valid. If they say you should have informed them - tell them you will review the policy and formally inform them straight after the meeting and that is was an error due to a change in family circumstances and your husband requiring help, outside of your work hours, to adapt to a change in workload/requirements of the business that supports your family

I was "let go" from a temporary contract during pregnancy as they mistakenly thought they had to pay me Mat Pay (which they did not and i knew this). the got rid of me for an unjust reason and i went to tribunal to receive full pay for the remainder of my contract and also got another temp job in the mean time. Its not ideal and is very stressful, so i hope that you manage to discuss this with them and they are reasonable.

For anyone who doesnt believe this happens in todays age - you are mistaken and i'm glad you dont have to go through it. best of luck OP! @EJT91

You need to get screenshots of this and provide it during the meeting to specifically question why your work, which is going on outside of your contracted hours, is causing you to be called into a disciplinary hearing when others are not considered a direct threat. Again they cannot discuss other peoples employment however you are within your rights to bring this to their attention formally and ask them implicitly to confirm why your second role within your family business to support your family is a direct threat to your contracted role.

Ask them to refer to the part of the relevant policy or their findings which note that your "second job" is detrimentally impacting on your current employment and why they feel it is a valid reason for a disciplinary written warning?

I started doing the job and then found out I was pregnant so I carried on for a while, but I was never going to carry on because it’s a bit sticky working and claiming maternity

She says she has a contract? Which she's planning to use in her defense to show it's not conflicting with her working hours.

There's also no evidence whatsoever the OP is trying to cheat HMRC - her tax code change seems to have contributed this enquiry!

I’ve spoke to ACAS who have informed me there is nothing in employment law that states I can’t get a second job, so my contract isn’t worth a dime. They said under employment legislation, everyone has a right to earn a living!

This doesn't sound right. Contractual terms will override common law and statue unless the statutory rights are those which cannot be contracted out of (minimum breaks, safe place of work etc.) Did they explain what statutory right gives you protection? Because you need that info, and you need to be sure it's right, in order to argue the point. It can't be true that employment contracts "aren't worth a dime" because otherwise why have them?!

It does sounds like ACAS have given you some useful info on the process that should have been followed. Though I suggest you also read up on it yourself.

But she IS working for him, she IS an employee? she is doing some book keeping and being paid min wage to do it, for the actual hours worked.

THERE IS NO TAX DODGE GOING ON HERE!

And she can probably actually work this second job throughout her maternity leave (bar the statutory 2 or 4 weeks off) as its a different job (sat at a desk).

The OP has said, several times, that she is aware she was wrong for not checking her contract and will hold her hands up to that.

The POINT is that several other employees have second jobs, that the company are aware of even though approval has not been sought as per the terms of their contact, but the OP is the only person facing a disciplinary. As her manager has already been difficult around the OP’s pregnancy, it doesn’t take a genius to work out what is really going on here. Pregnancy is a protected characteristic, and the OP is not being treated fairly. That is discrimination, which is illegal.

how is she ‘cheating the revenue’ when she was actually his employee and working for him 4 hours a week on a Sunday night?

OP honestly personally I don’t think they have a leg to stand on with this. Whilst yes you should have informed them, unless there is a conflict of interest they would not have been within their rights to stop you having a season’s job. So informing them is just a courtesy. But obviously this is something you need to take legal advice on. Horrible to go through something stressful whilst pregnant but it will all work out.

What makes you think we’re cheating Hmrc? How Sad of you to assume. I can prove I work, I send the invoices every week so if I was investigated I have nothing to worry about. Have a great day.

@EJT91 I think you can be confident you're not facing life in imprisonment for the work for DH, lol!

Indeed. If OP was given this advice, it is incorrect and that's worrying from ACAS!

There is nothing in employment law that explicitly prohibits second jobs unless there is a specific clause in the employee's contract. Which in OP's case there is. And she is (by the sounds of it) required to inform the employer rather than ask permission, which is unlikely to be contestable as unreasonable or disproportionate.

They probably have the clause in because they want employees to sign an opt out for the Working Time Regulations if they are concerned that a second job would push the employee's weekly hours over 48. There is a health and safety implication for employees who exceed these weekly hours because employees who don't get adequate rest breaks are vulnerable to mistakes, fatigue, etc. If the employer does not take reasonable steps to ensure that employees are not working over 48hrs a week they are committing an offence under the Working Time Regulations 1998.

Hence why most employers will request that any other employment is at least disclosed. It's not because they want to control what employees do on their non working time, it's to make sure they remain within the law.

I missed the part where you said you are invoicing him - you need to ensure that you are also getting tax independant advice.

And again - it does affect his tax, it is a business expense which reduces his tax.
It does not mean that is it wrong / illegal / tax dodging - but it does affect tax!

I must admit I'm confused too. I thought there was an employment contract and she was his employee, hence change in tax code.

I assume she means - She is sending out Company invoices to clients.

Not, she is invoicing the company for her work - as she is on the Payroll for that company,

The invoices I missed too. That’s a very big deal tax wise. I had assumed you were an employee. Have you set up as a sole trader and how are you paying the tax on those earning s as it is cumulative to your other earnings .

100% this but at worst (in my unqualified opinion) this would be a written warning. In my view it would be a verbal and a recommendation by the independent adjudicator that every employee is reminded of the contractual terms to disclose their second jobs.

the fact is nowadays many people have multiple sources of income. If you make crafts and sell them in your spare time- is that a second job? If you write books in your evening and get a book deal is that a second job? If your mum runs a cafe and asks you to help out on the odd shift is that a second job? Is a second job anything where we might get paid?

when the OP was doing this work for free was it technically a 2nd job?

The letter OP was sent said the consequence if upheld would be a written warning, not dismissal.

Self employed/freelance work and volunteering may or may not be not covered under second jobs, it depends on the contractual terms. Generally, "second job" means a salaried, contracted position.

Your employer didn’t say you CAN’T get a second job.

No sure I agree contract “not worth a dime” because UCAS has misunderstood. Your employer currently has no idea what your second job is.

Im not sure they’ve. “Conducted an investigation”. They have become aware of potential employment issue.

They want to be advised.

you need to do, IMO, is advise them, apologise. Accept that you breached the contract, give them opportunity to understand your other job, and hopefully move on.

This is good advice @EJT91. Go into this expecting that this is just a formality and will be sorted out and smoothed over. A written warning isn’t the end of the world. Be prepared to fight but don’t go in looking for one.

I apologise! I was distracted while reading some of the replies, and trying to be too clever. I will report my own post and ask MNHQ to delete it. 🙏

It doesn't sound as if pregnancy is relevant to this, and if your manager is gunning for you, that is a separate problem. (Very possibly she is, and that's serious, but not relevant to the employment thing). You are working for someone else albeit only for a few hours, and that's against your contract. If you had thought to discuss it with your employee first, they might have authorised it, but it will be harder. Hope you get it sorted.