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 😞

Not a legal eagle but have been a union rep and I work in a field where portfolio working is common, I'm a senior manager. We deal with this a lot because many people where I work are part time and work elsewhere, have private practices, do locum work in the NHS, or freelance for other private providers - including competitors!

Blanket bans on any form of work outside and organisation aren't common practice, because in reality it usually depends on someone's role and responsibilities as to whether it's appropriate or not. But there are certain circumstances where they are justifiable and could be defended if it came to a tribunal. In fact, in some of these circumstances an employer would be negligent if they did not place a ban on second jobs.

Public safety - e.g. train/bus/HGV drivers and pilots.

Conflict of interest - e.g. civil service, intelligence, police.

If your job involves regular on call work, a second job could restrict your ability to cover a rota.

Intellectual property - if your job involves dealing with patents, inventions, trade secrets, etc.

This.

It continues to make me SMH how people don't actually read and understand the terms and conditions of their contracts and then cry foul when they're pulled up for breaching them. "I didn't read it properly/I forgot it said that" is not a valid defence.

I had a NHS role previously where I managed a bunch of freelance clinicians. They weren't allowed to take clients on in their own private practices unless it was signed off by a clinical lead. Loads of them still did it on the down low and then would be like "aww I didn't know I wasn't allowed" when they were caught out (spoiler alert, it was in their contracts), and then were mad when we stopped giving them work. Some would get so entitled, they'd be like "well your rates are rubbish so I should at least get private clients out of it" and some didn't understand that a fundamental principle of being a contractor is that contract law, not employment law, applies, and they had no right to claim unfair dismissal!

Perhaps they were getting their advice here, come to think of it!

I help my husband with his invoicing and part of his salary is paid to me. If it doesn’t affect your company which it doesnt’t seem to and you do this in your spare time they would be absolutely disgusting to reprimand you for this.

Tax codes change for all sorts of reasons, not just second jobs and it's none of your employer's business - you might be eg. getting a pension, have untaxed income from a savings account being taxed through PAYE etc.

You want a Trade Union rep, if you're a member (and if not join a Trade Union) and if not a lawyer.

They need to provide some evidence for their allegation. And are on really dodgy ground if lots of other staff are well known to have second jobs but they're only taking action against you as a pregnant person.

Trust me, as someone who has worked two jobs, the tax man will cock up your codes and come after you years later demanding money. They have done this to me twice over ten years. I have never been self employed and left the codes up to those in the know to sort out to my detriment. Currently owe approx £3k (£2k of which is from ten years ago and they only contacted me in March this year).

Woah!!!

Stop. Call your union and don't say anything til you've had advice. Ask for evidence by all means, but no more.

If I was the decision person on your case I'd find against you. You are working for another company. Your husbands. You're on the payroll. You're doing the accounts. You have a contract. You're being paid.

You need to know what your job says about second jobs. Some have strict criteria in case of conflicts of interest.

Gross misconduct if proven is a sackable offense in a lot of jobs so you need advice before you say anything. If the risk is just a warning I'd admit the offence and talk through next steps. If it's more serious than that I'd be discussing with your husband and union rep what your options and risks are before you say anything officially

Hello, disciplinary meetings may be turned to your advantage when employers fail to observe the rules and infringe your rights as an employee. Your employer seems to have jumped the gun because before a disciplinary meeting can be held they are required to meet with you to discuss the matter, then they are supposed to consider if there are in fact grounds for a discplinary or not. Thye are supposed to listen to what you have to say before they move to a DM. If they do feel that a disciplinary is appropriate, then you should have been apprised of their decision and be invited to the disciplinary meeting. As things stand they have ignored employment law and breached your rights. As others have suggested you need to keep a record of how you have been mistreated - preferably send your employer an email pointing out that your legal right to a pre-disciplinary discussion has not been observed and thus the whole process is discriminatory - plus any other claims that you might offer in your defence or your counter-claim of discrimination. The email will provide proof that you have notified them of your concerns over their discriminatory conductThe thing to remember is that your rights must be observed and that these laws governing employment can be used to create a sizeable HR headache for the company. I have used this same defence. Having been called into the office I simply asked 'Is this a discilplinary meeting?' As the reply was 'Yes' I had the upper hand as she had failed to follow procedure. Anyway, try not to worry over this situation - you will be OK whatever the outcome. Look forward to the birth of your child, this work nonsense is not worth losing sleep over. Good luck.

Protected in so far as she can't be penalised because of the pregnacy. She can be penalised if she committed grossmisconduct.

Best to seek advice then decide what to do

I wouldn't bother dragging others into it. It's not relevant what they do or whether they followed procedure.

It is relevant if they've classed this a gross misconduct if it should only be misconduct, but you have done what they've alleged taken a 2nd job that allows your husband to pay you a tax free amount below your personal allowance (although i hope not velow minimum wage because then he can get in trouble) and write it off as a business expense.

Depending on the type of job you do there's all sorts of conflict of interest, working excess hours without opting out, etc that could be a factor. Get advice for the union or a specialist

I work in HR. I also haven't read all the responses.

I work for a company where you have to declare an additional job, although I have never disciplined someone for it. If that is what the contract says, then yes they could being a disicplinary but actually this is more a breach of contract than a disciplinary matter.

However, there are many things that are not right here and not providing an investigation pack that the company will be relying on during the process is a big no-no. Have they interviewed you at any point? Was there any reference to an investigation pack in the letter? If not, then go back to them and query this robustly because this is a requirement
Also, check the letter sent to you and ensure they have provided you the right to be accompanied in the meeting - failure to provide this is also a problem.

After the meeting, make sure when you are provided with the outcome you are given right to appeal the decision, as thats breach of the ACAS Code of Practice.

This has got tribunal written all over it and because you have a protected characteristic, you don't need 2 years service to bring the claim. Any HR support they have in place will be having a meltdown right about now and if they aren't, they should be.

Also, one last thing, but double check whats happened with your tax code. You can have 2 jobs but your tax free personal allowance can only be applied to one job and any second income is taxed at basic rate. Theoretically therefore you should apply the tax code to the job with the highest wage, which i am presuming is your current role not the work you are doing for your OH.

I would say a couple of things :

1. if they truly wanted to treat it as a gross misconduct offence, they should have suspended you really. Otherwise how can they justified that what you have done is so bad that it fundamentally breaks down the working relationship and the only option is to sack you.
2. They are crazy if they think they won’t have to pay maternity pay. Even if they sack you, if you have 26 weeks services, before the 15th week before birth (so 25 weeks) you qualify for maternity pay (as long as you are earning more than £113 per week).

However, it always baffles my brain when people sign a contract and doesn’t know what it says. Part of the reason we ask people not to have a second job without telling us is because of the working time directive.
But if others have second roles and aren’t treated in the same way, it sounds very much like pregnancy discrimination, for which there is no cap on an award at tribunal. And you mentioned others being men I think, so there could also be a sex discriminating element and potential even an age discrimination aspect because they are all so closely linked.
Even if no further action is taken, I would consider starting Early Conciliation because that working relationship will not recover.

I genuinely don’t understand why your partner is paying you to save for the baby? Why can’t he just give you money? My DH is pretty much retired but does a few days consultancy work here and there. If I want money, I ask and he gives it to me. He doesn’t add me to his consultancy payroll and pay it as wages.

So it’s mainly been covered but to summarise:

1. Most companies will have in their contract that if you are earning elsewhere you need to tell them. This is to manage conflicts of interest and to ensure that the company is taxing you correctly.
2. This has absolutely nothing to do with you being pregnant nor because you think someone is gunning for you. Please stop blaming you director. This will have been flagged by payroll because of taxation and your director will have been notified to deal with it.
3. If you are on your partners payroll during maternity leave for your company and still working then you aren’t on maternity leave. You may not actually be working but then being paid indicates that you are. Effectively you are taking money from your employer on maternity and earning elsewhere which most certainly is in contravention of your employment and has opened the door to gross misconduct.
4. You don’t really have a recourse as this is either a tax dodge (illegal) or you are supplementing your income while on May leave (which is gross misconduct).
5. There is not way the tax man or your company payroll would know that your are working for your oarters company. So this may seem innocent but you are in some hot water.

I understand your stress but unfortunately this is an issue of your own making.

My advise would be to explain that you are really sorry and that you were going to help in your partners company doing a few hours a week - then clearly explain there is no conflict of interest as your partners business is completely different. However if you work in accounts for example and are doing the books for your partner this would not be acceptable.

Tell them you didn’t realise your mistake and you have been taken off your partners books now.

I would prepare yourself with the possibility of cessation of employment if the gross misconduct point is upheld. Good luck.

Good advise but just to clarify that even though the OP has a protected characteristic since it isn’t relevant to the gross misconduct charge does that matter?

Im not implying anything but as an example (only for clarification) if a physically disabled person stole money the fact that they are disabled surely wouldn’t matter? Thank you!

It isn’t hours and that is where you fall
down a bit. It’s to ensure no conflict of interest to your employer and that they are reporting your tax code properly.

Yes it does. With a protected characteristic you're saying to the tribunal the employer did xyz because I was pregnant.

In this case, other people in the business have second jobs but the only one being disciplined is the pregnant employee.

In your example obviously theft trumps protected characteristic but if other employees without disabilities were stealing money and getting away with it or if employee could prove disability caused the stealing in some way there could be case. With discrimination claims, burden of proof is on the employee not the employer, unlike other tribunal claims.

Is your company car written into your contract? If it is then they’re going against your contract so you could maybe use this to say that you wasn’t aware you had to inform them of a second job as it’s been a while since you last read your contract and a second job wasn’t on your mind at the time.

Why do you need to see the evidence? You ARE contracted to another company, and presumably you aren’t going to lie about it? If your terms of employment forbid that, so be it.
However the circumstances are unusual. Explain them. Maybe they’ll let it go. Maybe you’ll be required to give up the extra role. You’ll probably be reprimanded for not ASKING if this was ok before taking it on.

You’re not being ‘got at’. You’ve just been found out.

Thanks for the clarification. Makes sense.

Your point around president of company actions and behaviour is really important. I guess if they always acted that way around second jobs than the protected characteristics wouldn’t ‘matter’ but if they are only coming after her because of it then yeah not okay.

Thank you for the response :)

@IAmClemFandango

would suggest you read the full thread.

We don’t know what the employer knows.

First rule of HR is to triangulate the data. You’re getting one side of the story and screaming “discrimination” from the rooftops.

Thanks, I will.

And yes, we don't know what employer knows and evidently OP hasn't been told what employer knows either investigation pack is missing as per original post. I will read through remainder of posts.

For clarity - not screaming discrimination, merely saying if it is as OP suggests, there is potentially a case for it if OP has relevant information to back it up. OP needs to go through the disicplinary process first.

Forgive if my post came across as scream discrimination first ask questions later, that was not my intention.

Why can’t your partner give you money like my husband does? Just a bank transfer? I am on maternity leave too - he didn’t need to add me to his payroll!

Because she is working for him. He has a small business and she is doing the invoicing for him which he doesn’t really want to do. I am very surprised that so many people don’t realise that partners often end up doing the admin. I used to work for a small business and I took over from the wife of the founder as the company had grown and she no longer had the expertise to continue. She absolutely had been doing it beforehand though.

It's a well known tax dodge - for partner's business.
Employ your partner and include it as a business expense