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 😞

@CrazyGoatLady I am constantly surprised how companies just send out terribly worded contracts of employment and expect them to be be enforceable.

I would count anything where you are earning money myself whether it be payrolled, freelance or running your own little business on the side. It is all a second job however it is paid.

you can see how lawyers earn their money in tribunals arguing over issues like this. A clear definition in the contract should explain the exact circumstances of when the employee would be required to declare other work to them.

I hope when it comes to it and you have your meeting that they will quickly realise that they are inappropriately escalating the situation!

Ignore the comments from people who clearly haven't bloody rtft 🙄

Deleted as cross posted with pp understanding they'd misread.

Well no there isn't anything in law. There is in your contact of employment though. Did you explain it properly to ACAS as this is worrying

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.

That’s what the OP has said, but it’s not fact.

@NetZeroZealot it will be important when her DP comes to take money out of the limited company to provide his income. There are obviously more options available for doing this in a tax efficient way when running the business through a limited company, but in the end he has to take income out one way or another that then becomes his taxable income. Using up OP's basic rate tax band by paying her a salary is an often used way of paying less tax on getting this income out of the company, but a few hours at minimum wage aren't going to cut it really!

Or treating her exactly same as other’s previously in same situation…

I genuinely apologise, I wasn't trying to be 'petty' but the way you write can be hard to understand. So it was supposed to be a joke about me not quite understanding what you meant about other pregnancies but only you being female.

I think when you go into the meeting you need to be clear about the wording you're using as it can be very easy to say something ambiguous that's then interpreted in a way you didn't mean. (Not just because of this comment but because the normal way of saying things is to say 'oh I was only innocently doing xyz' but in disciplinary context you need to be black & white.

So yes you didn't realise that you were supposed to check with your employer about your second role, you should have read your contract, but ultimately you wish to do that now and get a response from them about your other work (that is not in conflict with your main job). And get them to be clear about the process they use in these cases for everyone who is undertaking other work.

@Drfosters employers are notoriously poor at being specific in contracts and this is indeed why lawyers are rich! I'm not one (which my bank balance continues to reproach me for 😂), but have been a union rep in my time, and as such got to know a fair bit about this stuff.

Without knowing the wording in the OP's though, difficult to say if that's the case. And she is payrolled at her DP's company, so it's likely to be fairly clear cut - it's a second job, not occasional freelancing or voluntary work. The reason why that's often treated differently to contracted employment is because freelancers generally retain control over working hours, jobs they take on, etc, and it doesn't require the same level of commitment and tie in as a second salaried job does. The company I work for does have a specific clause about second jobs for full time staff (part time are exempt) and you don't have to inform them about freelance work unless it regularly takes you over the 48hr week working time limit. Most of the staff I manage are clinicians who have private practices, so this is something I've had to understand in my role. If someone is full time and is doing significant private work on evenings and weekends, it absolutely can impact their performance, but private/freelance work also does ebb and flow.

She may not even get a warning if HR realise she's just been a bit naive about the whole situation but didn't intend to conceal anything, and there's no conflict of interest in terms of her working hours and the nature of the business she is working for. But if she goes in guns blazing and claiming discrimination for what sounds like a clear oversight on her part that's led to a breach of contract, they may well throw the book at her.

Typo sorry, meant employment laws. Eg laws that protect employees from maternity discrimination

Which there is no clear evidence of in this case.

Oh come on OP. This is a well known tax dodge to put your partner on the payroll. No one will buy it

I think this is exactly what it looks like. My neighbour is on her husband's payroll as office support or somesuch title, but she never goes near the place.
She doesn't have another job though.

I thought in an earlier post you said your partner started paying you so you could build up some savings for mat leave?

I'm under the impression that's what he's done. It's his business and he's just out her on a payroll system so that she gets paid a set amount once a month like the actual workers. I dojt think she actually has intention of working for him. Not sure if it was a thoughtless act or soke sort of cunning way of doing something. Can't get my head around why someone would do that really.

Possible so she gets Statutory Maternity Pay from both employers. Her partner can claim it back from HRMC.

Partner on payroll is way to get money to family member instead of taking profit or own salary after paying tax. (Pay family salary under tax thresholds)

It’s a tax efficient way of putting more mo ey in family hands. The owners wife where I work is on the payroll and has a company car because she sends an email once a month.

I can assure you I have proof I work for him. He doesn’t do his own invoicing he doesn’t have time

She’s not earning enough to qualify for mat pay from him.

Doesn’t seem to be a deliberate fiddle.

Ignore them please. It's quite clear they think they are Wagatha Christie and untrusting souls.
Did your employer give you the evidence?

Why is it worrying? Law says you cannot be stopped from earning a living wage. Contract of Employment does not override law. It looks like its proveable that she needed to earn more money. It's like thinking an company NDA is enforceable above the law.

the issue is they can’t unreasonably prevent her from having a second job but they can reasonably contractually oblige her to declare.

She accepts she broke the rule, the question is what is a reasonable punishment for a very minor infraction . In my mind given it is just some admin for her husband a verbal warning would be more than sufficient and the company should send a memo out to remind the others of their obligation to declare (whiskey being clear what constitutes a second job in their eyes)

the OP is worried they will be much harsher on her.

You absolutely can prevent second jobs. I had to give up mine, and even need permission to be a school governor in mine.

I don’t think legally a company can blanket ban anyone from having a second job. Maybe some legal eagles can confirm.

there is always a reasonableness test even if something is written to a contract.

for example - if you are working a 40 hour week and want to do a second 40 hour week they can say no due to the hours. Or if you work in a certain field and your second job possibly has a conflict of interest.

But if you work as a waitress and want to be a school governor in your spare time I think they can’t unreasonably prevent you from doing so unless the hours could conflict. Or in this case doing a job during the week but having a few hours side hustle in an unrelated field on your Sunday afternoons it would be hard to argue that the OP isn’t allowed to earn a bit of extra cash

bit curious if I am wrong about that.

There are loads of restrictions, mainly in regulated organisations like financial services.

The issue OP has is that she has ignored the rules rather than that she has a second job.

It’s not necessarily about the job either. If you’re an Olympic skier in your spare time that has significant risk of you getting injured and not being able to fulfil your contracted duties is more likely.

In the OP’s case, her role has been restricted due to pregnancy but she’s taken a second job and not been upfront about it. They don’t know she’s not working 20 hours a week swinging from chandeliers in a nightclub whilst causing someone else to do parts of her job during the day.

this is another example of employment law not being what people think it should be.