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Evelyn Styles
Member - 9 posts
Dear Steve
I refer to your query.
Unfortunately it is not possible to exclude an employee?s rights under TUPE. Case law has shown that terminating a contracted out service and not taking on their workforce does not necessarily exclude liablity under TUPE.
Therefore it is advisable for a transferor and a transferee to indemnify one another in relation to any liabilities arising under TUPE.
Kind regards.
Evelyn Styles
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Evelyn Styles
Member - 9 posts
Dear Julia
I refer to your query.
An employee is entitled to Statutory Sick Pay (SSP) if s/he is unable to do the work which s/he can reasonably be expected to do under her/his contract of employment because of illness.
In my opinion SSP should be paid for the period the employee will be admitted to hospital, treatment and recuperation. If the travel from the hospital back to the United Kingdom includes recuperation - ie she will be unable to return to work on that particularly day and/or subsequent days due to illness - SSP should be paid.
In respect of receiving SSP for travelling outside the United Kingdom to the hospital this should not be paid as she will not be ill at the time of travel.
Please do not hesitate to contact me if you have any additional queries.
Kind regards.
Evelyn Styles
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Evelyn Styles
Member - 9 posts
Dear Lisa
I refer to your query.
The legislation is the Conduct of Employment Agencies and Employment Businesses Regulations 2003 which came into force on 6 April 2004. An agency will be able to charge an introduction fee, based on their current terms of business, if the temporary worker is employed you before the 5th July 2004.
After that date an agency can only charge a fee under the following conditions:
Firstly they may only charge an introduction fee for a temporary worker if their terms of business give you the option of paying the fee or taking the worker for an extended period of hire. The amount of the fee and the period of hire are a matter for negotiation and are without restriction.
Secondly they may only charge you an agreed sum of money if you take on the temporary worker within a period of 8 weeks after the end of an assignment provided the you have been given the option of keeping the worker on a temporary basis for an agreed period of time instead. Again there are no restrictions on the length of either the initial period of hire or the extended period and no restriction on the amount of the fee.
The Regulations are published by the DTI and are available on their website http://www.legislation.hmso.gov.uk/si/si2003/20033319.htm
Do not hesitate to contact me if you require additional advice.
Regards.
Evelyn Styles
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Evelyn Styles
Member - 9 posts
Dear Joanna
I refer to your query.
I suggest you have a meeting with the employee and outline the situation to her. Try and find out as much information as possible in respect of her illness and views of her likely well being for the future. Consider other alternative positions within the organisation, ie would it be possible for her to work from home? Try and obtain a medical report on her illness and fitness for work.
Potentially the employee could have a claim for disability discrimination or unfair dismissal (minimum one year service) and therefore any decision should be treated with caution. I would avoid dismissal and use it only as a last result if having considered all other options it is not possible for the employee to continue to work in the company.
Kindest regards.
Evelyn Styles
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Evelyn Styles
Member - 9 posts
Dear Thomas
I refer to your query.
Unfortunately TUPE is not an area of law which is easy to ascertain and each case will depend on it's own facts. Nonetheless increasingly cases where a contract has terminated and employees not transferred to the new company - has been held to be a TUPE situation. I would therefore act with caution.
The first option is to possibly take the risk and refuse employment on the grounds there is no TUPE situation. Bearing in mind that the individual could pursue a claim against you in the Employment Tribunal (ET) and ultimately it would be a matter for the ET to decide based on the facts.
The second option is to engage the employee and perhaps seek an indemnity from the other company indemnifying you against any future claims and also compensating you for the additional costs involved in engaging their employee. The problem with the second option is that once you engage one employee other employees may also argue that it is a TUPE situation.
Do not hesitate to contact me if you require additional information.
Kind regards.
Evelyn Styles
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Evelyn Styles
Member - 9 posts
Dear Paul
I refer to your query.
The answer to your question depends on the level of sickness. For example if an employee is on sickness absence with a throat infection and it clears before the expiration of his medical certificate; I would seek the employee's written consent that he does not object to returning to work early.
However, if an employee is on sickness absence with work related stress I would not allow his return until the expiration of his medical certificate or verification from a medical practitioner of his fitness to return to work.
The implications of failing to follow the above procedures could lead to potential claims for personal injury.
Do not hesitate to contact me if you require additional information.
Kind regards.
Evelyn Styles
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Evelyn Styles
Member - 9 posts
Dear Anthony
I refer to your query.
It is not possible to make a direct complaint to an employment tribunal about bullying. However, an employee might be able to bring complaints under laws covering discrimination and harassment such as race, sex, disability, sexual orientation, religion or belief.
Furthermore, employers have a 'duty of care' for all their employees. If the mutual trust and confidence between employer and employee is broken - for example, through bullying and harassment at work - then an employee can resign and claim 'constructive dismissal' on the grounds of breach of contract.
I would therefore advice you to seriously investigate the allegations.
Kind regards.
Evelyn Styles
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Evelyn Styles
Member - 9 posts
Dear Rob
I refer to your query.
I would advice against dismissing her until you have obtained a medical report clarifying her capability/fitness to return to normal duties now or in the future. In the absence of her providing medical evidence you should treat her refusal as a disciplinary matter and act in accordance with your company internal disciplinary procedure. Preferably three warnings then dismissal if she refuses to co-operate.
Do not hesitate to contact me if you require additional advice.
Kind regards.
Evelyn Styles
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Evelyn Styles
Member - 9 posts
Dear James
I refer to your query.
If the employee has been dismissed and no longer works for the company you can make an application to the court for a possession order or eviction order. This is irrespective of any claims he may pursue against your company for unfair dismissal. The type of order granted by the court would depend on whether the employee is a tenant or licensee. If the employee is a tenant then ordinary landlord and tenant rules apply which gives the tenant more rights and securities than a licensee.
If the employee is a licensee then the court has virtually no discretion. It must make a possession order if the landlord applies (subject to the landlord complying with any terms of the licence agreement for example, as to notice).
It is important to note that it is a criminal offence to evict a ?residential occupier? without a court order.
Please do not hesitate to contact me if you require additional advice.
Kind regards.
Evelyn Styles
0207 016 2180
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