Comments by Bozena Benton

Bozena Benton
Member - 46 posts

Lesley - Years ago I certainly would have taken the stance (and did so on many occasion) that if an employee didn't turn up for work as in this case and made no contact they had resigned and sent them a letter (after an initial request asking them to explain their absence) accepting such - however, there is now case law that indicates that it is safer to treat this as gross misconduct and dismiss ensuring that you follow the statutory dismissal procedure at the least. If you don't follow the disciplinary procedure you may find a claim of unfair dismissal succeeding.

Having considered the arrangements you have made for her travel whilst you are away I think most tribunals will consider you have been fair (and don't forget that most panel members will have their own mothers-in-law).

The main question will be one of whether you followed a fair procedure.

I would also advocate that if possible you try and come to some kind of compromise with your mother-in-law - after all unlike most employers if you were to dismiss she'd still be in your life and unless both you and your husband are happy to sever all ties she'll be in your life for a while to come.

Having said that you may want to consider how good an employee she is and whether if she were not your Mother-in-law you would continue to employ her - how would you treat any onther memebr of your staff if this were to happen? If you've had previous run-ins with your mother you may feel that this is the time to draw things to a close and return your relationship to purely a personal one and only employ non-relatives

Bozena Benton
Member - 46 posts

My son lives in Finland where last year the local paper printed similar information without warning

Bozena Benton
Member - 46 posts

When my son moved to Finland and wanted to work it was a requirement that he first learned the language - he actually was required to learn both Swedish and Finnish (he lives in a Swedish speaking area) and it is the policy that one attends college full-time to so do, receiving an allowance during the course.

The course includes a work experience placement. Those who pick up the language skills find that the employers are more likely to offer them a job before the course is complete

Bozena Benton
Member - 46 posts

Veronica,

You ask what should you do.

The first thing is to talk with him. Tell him that it was not the brightest idea to not eat thereby making him ill, but that if he was trying to hide it from you it didn't work. Ask him how he manages his diabetes and whether there is anything you need to put in place to enable him so to do.

You should talk to him to see if there is anything you expect him to do (duties or working practices) that would be detrimental to his diabetes. The chances are that he would have thought about this before he accepted the job. Knowing the serious consequences that can occur when mismanaging diabetes I doubt whether anyone deliberately puts themselves in that situation. You may find that he keeps his diabetes under control provided that he eats regularly, takes his medication and keeps all his medical appointments. There may be times when he needs more intervention but those can be addressed at the time.

If you are still concerned you can ask him to see your OH specialist for further advice. Once you are fully informed you can then make appropriate decisions.

Don't assume the worst - you may find that you've recruited a star and that with your support minimise any health problems.

Bozena Benton
Member - 46 posts

Frustration of contract is strongly not advised for such a short period of time. Case law suggests that the custodial sentence must be of a signiificant period for frustration to apply

Regardless of whether he sent in a sick note - the reason for non-attendance is his custodial sentence and therefore you can withold wages/salary due to a breach of contract i.e. non-attendance

You should consider invoking the capability process if he is still banned from driving once he is released and returns to work. You could schedule a meeting whilst he is in custody but must give him the opportunity to send a representative or submit a written statement of defence. However, as the sentence served is only likely to be 4 weeks and I would have thought by now he has served some or most of it - it would be reasonable to schedule it for when he's released. If you follow the capability route you must consider before dismissing whether there is any other job he can do for the duration of the ban

You may also want to consider whether he has brought your company into disrepute especially if the offence(s) was/were carried out whilst at work - this would be a disciplinary matter and most likely deemed gross misconduct

Bozena Benton
Member - 46 posts

Care needs to be taken when using frustration as argument for ending a contract of employment due to being incarcerated for short-term sentences. It needs to be remembered that `frustration of a contract' in effect means that there was neither a resignation nor a dismissal but that the contract came to an end through no action from either party as in death of an employee. The employer should if be looking at dismissal as the safest route ensuring that they follow the statutory procedure (albeit usually in the absence of the employee).

Bozena Benton
Member - 46 posts

Although a large number of employers allow staff to book their leave during the year as and when they wish for a number of sectors such as education or manufacturing, holidays (all or in part) are specified i.e. traditional industrial shutdown. Any such arrangements are either well known in the industry such as Potteries fortnight or usually specified during interview or contracts of employment.

Bozena Benton
Member - 46 posts

All our guys take paternity leave - however this may be due to the fact that the payment is enhanced - we pay full pay for the first week , SPP for the second. All the guys take the first week but most choose to take the second as part of their annual leave entitlement rather than drop their pay to the SPP rate. It's not the taboo of taking theleave that's the problem it's a financial decision.

Bozena Benton
Member - 46 posts

Whilst the staff will love the extra half-day I doubt that it will have the desired affect. Those staff who would have taken time off to do shopping will still take time off. For a number of council staff it is not about lack of time to do their Christmas shopping - for that they can use their flexi-time or lieu time off. Council staff also have more leave than those in the private sector. Taking time off is more about perceived low pay,dissatifaction with management (including non-management of absence and sickness), low morale to name but a few.

Bozena Benton
Member - 46 posts

Mary,

You manager has every right to ask that you remain at the cae home during your lunch-break in return for the time being paid. If you agree to this the time can be treated as fo those staff who sleep over.

Your manager will need to make sure that you still get your entitlement to appropriate rest breaks.

Bozena Benton
Member - 46 posts

C - if your tea breaks are paid, the company can require you to stay at your desk. I'm sure however, the manager will have thought about the risk assessment of drinks being spilt onto work stations either near computers or onto documents. Moreover they will also have considered the loss of benefits from informal team building and positive gravpevine links against increased performance.

It may be that they believe that in order to be seen to be fair, if they wish to stop smoking breaks they also need to stop tea breaks

Bozena Benton
Member - 46 posts

Kushma

You can notify the employee that you do not require him to work out his notice and pay him instead. If you have a contractual agreement allowing you to make a paymemnt in lieu of notice he would receive a net salary payment for the remainder of his notice. If there is no such agreement you can pay him a gross payment as a compensatory payment for a breach of his contract as he has the right to work out his notice. This in effect brings the contract to an earlier end effective from when you agree the last working day will be.

Alternatively you can if you have an agreement or he agrees to it, put him on garden leave for the remainder of his notice. This means that he remains an employee until the date he gave as his last day when he resigned. He will receive salary and benefits as usual during this period.

Whilst an employee has the right to lodge a tribunal claim (even spuriously) if you follow a fair procedure and pay all entitlements under statute or the contract of employment you should avoid a claim for both unfair and wrongful dismissal.

Bozena Benton
Member - 46 posts

The matter is definitely an equal value issue in accordance with legislation which has for some years now moved on from just comparing the men and women working alongside each other doing the same job

Bozena Benton
Member - 46 posts

The cleaner and the refuse worker was not an actual example but used merely to demonstrate that the case of equal value works across different job descriptions.

Local Authorities will have undertaken job evaluation exercises (normally factor based to include factors such as environment and level of responsibility), which will rate jobs against each other and will result in very diverse jobs being grouped together within the same pay bands. I accept that a cleaner and a refuse worker may not fall within the sane band but an office supervisor and a refuse supervisor might, thereby showing that they are of equal value, but with one of them being significantly paid less than the other - in most cases it will be the one which has historically been undertaken by men.

Bozena Benton
Member - 46 posts

It has long been the case in local authorities that those working in the same job have been paid the same salary.

This issue has arisen where you compare jobs of equal value and how they are remunerated e.g. cleaner and refuse collector or supervisor in a school kitchen against a supervisor of a works team - the former group being predominantly female the latter male.

Historically those posts which are predominantly male enjoy bonus schemes and in some cases guaranteed overtime or are task based regardless of how long it takes to complete.

These bonuses (some of which can be a substantial part of the remuneration) have been long standing and were introduced (and fully supported by unions) to increase the pay of men (to facilitate recruitment) who were seen as the breadwinners.

Those jobs wholly or predominantly staffed by women attract no such enhancement. Whilst they were introduced on the premise of performance for a number of the bonus schemes this now is more linked with attendance which is harder to justify.

Bozena Benton
Member - 46 posts

I accept that whilst able-bodied individuals cannot fully appreciate the difficulties those with disabilities face and also that each individual with a disability is unique in terms of how that diability affects them albeit they may have common issues with others having that same condition.

It is therefore the responsibility of the employer to talk to the individual to ascertain how their disability affects them and what reasonable adjustments if any need to made in order for them to undertake their duties.

I am not sure if any employee with disabilities is employed for 'window-dressing' and this implies that those in employment have not got there because of their own merits. As an HR professional for over 25years I can assure you that every employee with disabilities I or my managers have recruited have been more that capable of doing their job.

Other than reasonable adjustments which include addressing any other office issues (such as introducing deaf awareness courses etc) I'm not quite sure of what other issues you feel need to be addressed within the contract.

Bozena Benton
Member - 46 posts

I am amazed that some members of this forum assume a level of medical knowledge, experience and qualification which is quite beyond them and is a dangerous and possibly expensive stance to take.

Whilst diabetes, asthma and other chronic conditions in some cases may be brought about by lifestyle for most suffers it is not, and therefore to discriminate against them in employment terms and conditions would be very foolish. It would also be difficult to get medical professionals to identify those staff who brought about the condition upon themselves and those who were not at fault. All medical conditions need to be checked out and a medical report sought if you are to take any detrimental action against an individual.

Employers should have in place procedures to tackle employees who `throw a sickie' when not sick or those suffering from a hangover.

With regard to staff choosing to have `cosmetic' surgery for vanity reasons you may wish to treat them differently in terms of pay from those needing reconstructive corrective surgery. Or would Terry argue that anyone picked up an infection following cosmetic surgery and required further treatment brought it upon themselves.

Bozena Benton
Member - 46 posts

You should confirm any proposed changes and agreements in writing both in terms of offer and acceptance especially as there will be a delay in implementation.

This should clarify that you have both agreed to the same thing especially as this may be disputed at a later time when you may not have had chance to put it into practice.

There may also be:
- a change in personnel by the time your employee returns to work, or
- differences in recollections as to any discussions or what was actually agreed or
- changes in circumstances resulting in either party trying to go back on an agreement

My advise would be to always record any changes to terms and conditions in writing.

Bozena Benton
Member - 46 posts

My understanding has always been that her leave should be based on contractual hours worked. On return her leave should be recalculated for the leave year in question. Prorata her entitlement for time served at full-time and then repeat for her new hours for the remainder of the leave year. I know that at first glance it appears that she has more days off but this only equates to hours worked.

Compare it to an employee who reduces their hours without a maternity break - I'm sure you wouldn't expect them to forgo their leave at their previously highter rate just because it was taken when their hours dropped.