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 😞

This sent me 😂

The issue is that your oh has put you on his company payroll. This generates a tax code, and thus affects the NI and pennsion etc your real employer contributes, so hmrc would have informed them
This is nothing to do with your pregnancy, it is about how your payments and tax are now being 'managed' by 2 employers. You are at fault, whether willingly or not

I hadn’t realised until now that it states in my contract I need to let them know

You are supposed to know what's in your contract.

If I was your employer and you were not doing aspects of your role because of pregnancy and then found out you had a side gig on top of a full time job I think I'd be pretty pissed off tbh.

Of course it's really stressful being on a disciplinary, but if you have done something to warrant it unfortunately, pregnant or not, it has to be done.

You said in your OP the letter said you will get a warning if it's upheld, so you are not going to get sacked. Best advice I can offer is hold your hands up and say you made a mistake, make it clear the other role won't interfere and is desk based and aligns with the same health and safety constraints as your current role does. And if you get a warning, well, you breached your contract of employment. As a business owner and employer, your DH should also have known that working for another employer outside of a full time contract usually needs to be disclosed too.

Usually warnings only go on your file for 6 or 12 months so if you otherwise have a good track record it'll cease to be a problem as long as no further issues.

Whether or not you're entitled to keep your company car during maternity leave will depend on the terms on which it was given to you, so you would need to check your contract/company car agreement and check with HR. Where I work, there is a clause in the agreement that says if you are going to be off work for 6 months+ (which covers things like maternity leave, sabbaticals/career breaks) you may be asked to return it. But then obviously if you return to the same role with the same benefits they would need to provide another one.

You would need to prove that HR explicitly knew. They could claim that there was no tax code change for other employees so an alert wasn't triggered.

It really depends on the wording of the contract. We don't know what the contract explicitly says so it's hard to give exact advice. It could be that she's not allowed to be employed by another company, in which case if the others are doing self employed activities as sole traders they may not be in breach. Difficult to say without knowing the wording.

The employer could also say that as a result of this incident they are doing an internal audit of all employees and investigating the situation. The OP wouldn't be allowed access to that information as it would be data protected, unless a court ordered it.

Point is, OP doesn't have clean hands under employment law as she has breached her contract.

Tax codes make no difference to NI or pension contributions.

OP please get this moved to the Work board

Exactly and I hold my hands up to that! I just feel an actual disciplinary hearing is a bit strong without a conversation first? I’ve worked for this company for a long time and have an exemplary record. I just expected maybe a phone call to say “your tax code has changed, have you got a second job” and I would be honest and say yes and then if they wanted to discipline me from there then they could.

Before any decision to discipline you there should have been a full and fair investigation which should have involved a meeting with you.

You should have received all evidence gathered in the process of the investigation.

When you go to the disciplinary hearing take a colleague with you to take notes.

In the hearing, I would read a statement, as early as possible in proceedings which states something along the lines of "I am working for my partner's business doing x for x hours per week. This work has no impact whatspever on my role here. I apologise that I had not notified the company of this other work as contractually required. That was an oversight on my part, again, for which I apologise.
I beleive that this disciinary hearing has been called, not because I am working a second job but because I am pregnant. I beleive I am being victimised and harassed [by x] due to the fact I am pregnant. I note that ?? (Number) of staff have other employment but have not been invited to attend disciplinary hearings."

OR

You could save the statement (amended slightly) for any appeal hearing.

If I was in your shoes, and this is not resolved quickly and fairly, I would be raising a greivance against thus person.

This is dreadful advice. But then, those of us qualified to advise on such matters can usually spell “grievance” properly.

That figures that you are HR.

Calling someone aggressive is a tactic to get them to shut up.

I’d say you are most likely part of the problem when it comes to pregnancy and maternity discrimination.

Are you going to be going on maternity leave from your partner's company as well as from your main role? Or are you planning on continuing in that role? I wonder if that is the problem - your employer will have to pay you maternity pay yet you will be earning elsewhere. I don't know anything about the technicalities about this but I do remember a massive fuss somewhere I used to work when someone had an approved second role but didn't go on maternity leave from it and think it was more to do with whether maternity pay laws actually let you do that and so whether our employer was actually in the wrong for paying her her maternity pay when she was still working. As I said, I wasn't directly involved so didn't know the details and it was also several years ago so things might have changed. I just wanted to point out that it may not be simply because you have taken on a second role.

Just that I must let them know! It was a genuine mistake. I’ve not gained anything through not telling them because I’ve still been paying tax, so I haven’t deliberately tried to swindle them or keep information from them, it just never entered my head! One of them is my friend and she thought the same as me, so she is going to let her manager know today.

Calling someone aggressive when they are being aggressive to win an argument is just stating fact.

Giving them misleading advice when they're in a vulnerable position is irresponsible.

HTH

I would be tempted to be a bit clearer than that or they’ll keep coming for you if they are determined to push you out. In my case when faced with maternity discrimination, I wrote a letter outlining my concerns and not accusing them of discrimination outright (didn’t want to antagonise) but reminding them of my rights and strongly hinting at the discrimination. I think it would be worth doing something like this in advance?

From my experience as a union rep in a past life, employers try to get away with what they can. Once they realise an employee is clued up, they tend to back down unless they’re truly determined to get rid of you. And if that happens to you (really hope it doesn’t!), don’t let it go! Go on ACAS and follow their procedures.

For the meeting, I would write a sort of script for myself to make sure you say what you want to say in the most efficient way (not losing clarity in the emotions of the moment etc). I would also take someone with you if allowed.

Do accept responsibility for not having notified them but do also immediately question the lack of fairness in how the policy is being applied. Don’t leave that for a parting shot, you want to nip this in the bud. Perhaps remind them of their duty to apply policy to all employees and that given your pregnancy, you’re surprised they’re not being particularly sensitive to this since they have a duty to ensure they are following employee law.

It’s not unusual to have rules about second jobs. Lots of organisations require you to seek permission first and I think some organisations may have a blanket ban.

How long have you been doing this second role?
When were you employed / started to receive payment?
How many hours are you contracted to work and how much do you earn, I.e. does it reflect normal pay for the role or could it appear your partner is avoiding tax on his income?
As well as the rules aspect, there is the well-being aspect. If you are already working full time, it could be perceived that starting a second job in pregnancy is less than ideal for your rest and relaxation and the energy you bring to your main employed role.

Please don’t give advice you aren’t qualified to give.

This post is utter horseshit.

(Plus she would have to be earning £65 an hour to qualify for a second lot of SMP with her OH’s company.)

OP, whether you feel they want to get rid of you because you’re pregnant is actually irrelevant. They can’t if you haven’t done anything against policy. They can if you have, and they still can and would if you’re not pregnant.
If your contract specifically states you cannot have a second job, then they do have a case for gross misconduct. If it doesn’t specifically state it, but simply alludes to it, or states something like it is discouraged, then you can fight it.
The wording on your investigation letter is completely standard, it could still turn out to be a complete nothing. The fact is, if they receive an accusation, with or without evidence, they have to conduct an investigation to get to the truth.

Going against the grain I wouldn't admit anything in the meeting. See what evidence they have. HMRC get tax codes wrong all the time. If you can then stop doing the second job and inform HMRC yourself the tax code needs to revert back, you'll be fine.

You’ve kinda been screwed because it’s in your partners interest to transfer the money to you as wages as he then doesn’t have to pay tax on it as it is a business expense. It lowers his tax burden without losing money as it is just transferring it within the relationship. The problem is has had implications to your main job. Just be honest explain you didn’t realise and then ask what they want you to do to resolve. As a tax fiddle it’s not great as it has massive implications for you

Do you have a union rep? If not take a colleague in with you as a witness. Sounds like your boss is gunning for you. You will need to hold your hands up. Is the work you have been doing for your OH in the same industry as your full time job? If it is it will be seen as working for a competitor and they may well use this to dismiss you.

Found this which may be useful

If the employee is forced to take a second job out of financial necessity, and any secondary employment does not conflict with or prejudice the commercial interests of the employer’s business, then it may be more appropriate to provide the employee with a written warning.
Employers may also want to carefully reconsider the potential negative impact of any blanket prohibition against their staff working from someone else in the current economic climate.

At the commencement of employment, within any statutory confines, the parties are free to agree all kinds of contractual provisions when it comes to their respective rights and responsibilities. This means that, provided the new recruit agrees, the employer is free to incorporate a contractual provision which prevents that individual from getting a second job.
This may be because the employer is looking to maintain high levels of employee engagement, ensuring optimum levels of performance and productivity, especially from senior members of staff who are being paid well to devote all of their time and energy to the one business. It could also be because the employer is looking to minimise the legal risks around maximum weekly working hours and rest breaks, as well as risks to health and safety.
However, in the existing economic climate, where many employees are being forced to look for additional work to top up their existing income levels, unless an employer can afford to provide their staff with a suitable pay rise, seeking to enforce any contractual prohibitions around secondary employment can result in a disgruntled workforce and even loss of staff. Having this type of contractual prohibition can also lead to low recruitment rates, where candidates may be easily put off working for a business if they feel overly restricted.

I think you'll be fine OP

Just put your hands up as you say. Be honest about what you are doing and how it in no way impacts the company and that you'll take steps to rectify the situation immediately.

I suspect you'll just get a formal warning and that will be that.

Definitely take someone with you to the interview. They can't advocate for you but they can act as a witness and step in if you find yourself getting upset.

Good luck 💐

I'm also curious about the tax. You say your tax threshold hasn't changed but is it a way of increasing your household income but avoiding increasing your partner's salary and perhaps pushing him above the threshold at which you begin to lose child benefit or the threshold at which you can no longer receive the free childcare hours?

What’s “employee law”?

Morning. Before she speaks to her manager, ask her to call HR or payroll and ask them to email her what her tax code is.

I would say it towards the beginning of the meeting if a HR rep is there. Just ask outright after they say about second jobs "Okay so everyone in the company is subject to this?"
Make it a small question but a question none the less. HR should say yes. Also say was this triggered because my tax code changed.
If you have those two answers then it will help if you have to go to tribunal. Also ask if you can record the meeting and just note down what their answers are.

OP doesn't qualify for SMP from her second job anyway. Effectively, you have to be employed before you become pregnant and still be employed at 25 weeks to qualify for SMP.