Comments by J Bray

J Bray
Member - 11 posts

Hi Colin,

I'd be interested in seeing the stats as the last ones I saw showed that more employees than employers were winning around my area (although I admit I haven't looked at any for a couple of years!)

Those without a real case to support are often the ones that involve lawyers to fight their corner as they know they are more likely to receive some form of payout with a lawyer on side. Unfortunately, as lawyers are all too aware when targetting a smaller company, it is cheaper for the company to pay out before the tribunal rather than go through a costly process that involves taking several employees off their job for a few days so they can provide evidence.

Public sector remark was designed to induce comment as much as your previous comment about HR not worrying about law was :)

Jenny

J Bray
Member - 11 posts

Teresa/Sara, It all depends on what the contract and handbook say. There's often a clause that says that the standard disciplinary procedures don't apply to employees on their probationary period/short term service (which could mean under a year) and that these workers may not be warned before dismissal. If it says this then they can do it.


Yeah right Colin. Don't know where you live but that's not the way it works in most of the country. ETs are known for being employee biased where I live.

Try being an employer taken to ET by an ex-employee, with a very good lawyer who had also been responsible for claiming from his previous companies, who made up loads of lies just to make some money. Then see how it feels.

People are all too aware of their rights and try to claim all sorts during the course of work under the term 'discrimination' just because they don't agree with company procedures. An example of this is 'work life' balance that everyone mentions if they're not allowed to take unpaid time off for reasons such as going shopping or looking after their dog etc. They fail to realise that work life balance works both ways and that if the work isn't done when customers expect it the company is unlikely to stay afloat (unless you work for the public sector in which case you can take whatever time off you like, with pay, and get away with it because it's funded by tax payers money).

J Bray
Member - 11 posts

There are a number of issues here.

You say that you did nothing to reduce her stress but that she worked under a different manager for 3 years. How soon after her return did she change managers? That could be seen as the company trying to reduce the stress as she did not take any time off while under that person.

From the way you write it I would say that the race issue is something she is trying to add in to strengthen the number of things she can claim for. The more claims she can put to a tribunal the more likely she is to win at least one (that seems to be the train of thought of many tribunal entries these days). I doubt that anyone would follow that claim through unless she has some more recent examples to show it is ongoing. I also suspect that if you find a suitable solution to her returning to work then she may well drop this issue.

How recently did she raise her grievance and has this been fully investigated by the company and a letter sent out to her to let her know that you are looking in to it, take grievances seriously etc.?

You have an issue in that the senior manager has admitted a failure of duty of care. I'm guessing this has also been documented. The thing you have on your side is that the incident being referred to was 3 years ago. Yes, this shows that she has a history but it also shows a lengthy time in between her time off where she has been fine for 3 years. She was not off for a substantial time last time so you could argue that she didn’t need a structured return to work on that occasion, although this all depends on when you would normally put this in place ie. after 3 or 6 months.

She was fine for 3 years before working back in the original area for 1 week. What is the area and can it cause this high amount of extra stress in just a week? Has she avoided the area completely for 3 years until the week before she went off? If so, this again could be seen as you helping her when she returned to work last time.

Have you requested a report from her doctor as to the cause of her stress and depression and his estimate of when/if she'll be fit to return to work? (You'll need to get her permission to approach her doctor and the report will generally cost around £40.) Have you arranged for her to see your company Doctor/an Occupational Health provider for an independent assessment (provider arranged by you and not her which can be useful if you want a second opinion)?

If you want her to return to work then I suggest asking the doctor for a report and/or sending her for an OH assessment then suggesting a structured return to work on this occasion, if the report shows she will be fit to return to work. This may include a staggered return on part time hours, gradually building the hours back up.

If you don't want her to return to work then I would suggest negotiating a compromise agreement with her that effectively pays her off while also making her sign a lengthy document agreeing that, in return for the payment, she will not put in any claims against the company.

J Bray
Member - 11 posts

I implemented childcare vouchers in my workplace. I only initially had 1 person interested in the scheme so opted to create the vouchers and operate it all in house. There is a sample voucher on hmrc's website.

I've been operating the scheme for over a year now and have not had any problems with it.

I operate it as a salary sacrifice scheme so those participating have to sign an amendment to contract stating their annual salary will be amended to x but the remainder will be made up with childcare vouchers to the value of x per week (up to £55 tax free). Before signing this I make sure I run through the other implications of agreeing to a salary sacrifice scheme including that it can affect purchasing potential for mortgages, hp, loans etc.

Hope this helps.

J Bray
Member - 11 posts

I believe the companies that most people talk about crediting holiday back when people are off sick are public sector/civil service. This does not generally happen in the private sector (where companies are accountable for their own money!). I have not known a private sector company to operate where they 'refund' any holiday entitlement. Generally, once holiday is booked it is to be taken, regardless of whether that person is then signed off sick. If they were due to go on holiday (ie, somewhere abroad) the majority will still go on holiday so it is generally still counted as holiday.

Kelly, in answer to your query specifically - You would have to check your handbook and terms and conditions but I would say, unless these say different, that the holiday stands as it must be taken by all staff.

J Bray
Member - 11 posts

Hi Irene,

Ordinary holidays should be taken before maternity leave starts as they can't generally be carried over to a new holiday year. You can still pay bank holidays as they occur alongside SMP. I would pay them as they're due rather than before they are due as otherwise you could set a precedent for other people wanting to work bank holiday days in order to take time off elsewhere in the year.

Jenny

J Bray
Member - 11 posts

I agree, more information is required in order to provide an answer.

This will also depend on what number of holidays you pay and whether bank holidays are included in the holiday allowance or listed seperately. Ours are listed seperately and you have to be in emplyment in order to be paid. If one of our employees had left on 20th December they would not have been entitled to the bank holiday pay. We pay above the statutory minimum amount of holidays so the change in legislation has not affected us.

Can I ask - why are holiday paid in advance? Is it that your wages are processed and paid up until the end of the month even though they are paid on the 20th?

J Bray
Member - 11 posts

Hi Anna,

While on OML you still accrue any benefits you would have been entitled to while at work, including holiday. While on AML this isn't automatically the case but you would need to check your policies/handbook as each company tends to set their own policy regarding this.

You cannot generally carry holidays over from one holiday year to the next so the amount of holiday pay owing to her would depend on when your holiday year runs.

For example, if your holiday year runs from April to April and your policy states that holiday is only accrued during OML then I doubt you owe her anything as her OML entitlement would have expired when your new holiday year started in April.

If your holiday year runs from January to December then she would be entitled to any holiday accrued during OML in the first few months.

However you work it out it's best to put it all down in a letter to her explaining what you are paying her or why she isn't entitled to anything. This will help stop any repercussions.

J Bray
Member - 11 posts

You could have problems implementing this as it has been done for 16 years so is part of their psychological contract even though it's probably not in their actual contract. How about trying to meet the manager half way and asking people to cut it down to 5 minutes? Ideally you need to coerce the employees into agreeing a compromise in order for it to work.

J Bray
Member - 11 posts

You'd be better off waiting until he returns to work. As Frank says, return to work interviews are a good idea after any employee has a period of absence.
If you identify that he has had sufficient training then ask HR whether he has any registered disabilities. He may have a co-ordination problem linked in with dysphraxia, aspergers or similar.
Do you have a drug and alcohol policy in place? Do you do random drug testing?
If this is an abnormally high amount of accidents and the rest of your workforce do not have the same accidents and use the same machinery, once you've conducted a return to work interview, you may want to remind him of your policy (if in place) and ask to test him. If he runs a mile you know you've found your answer!