Employee off sick working elsewhere

[honeybee13]

Hello again. That's a shame and sounds quite vindictive, whilst I respect what Mariefab said.

 

I hope ACAS help you to find a fair solution.

[natalie]

I agree with the others, avoid the pub at all costs, she can say you have been harrassing her out of work!

 

Play everything by the book, dont be tempted to even speak to her without a witness because it sounds as though she will use the slightest thing against you.

[Takinthepagain]

hi elpulpo,

 

refusing to accept the grievance was reason claim put in although i offered meeting within 24hrs of verbal claim.

 

grounds were not booking clients with her cos pregnant, persuading clients to use other stylists rather than her. clients telling her i was telling them she had left, not wanting to pay and threatening not to pay maternity pay and making her feel that she should terminate her employment.

 

evidence available will show that she was fully booked from when she said she was pregnant through to the day she was going to take 5 weeks paid holiday prior to starting maternity leave, except for the day on which she kicked all this off. (and i thought i was doing her a favour letting her have 3hrs with her feet up before she started for the day lol)

[honeybee13]

Takinthepagain, I'm thinking you have all this in writing? That should help your case. Did she lose money if clients went to other stylists?

 

There seems to be a big gulf between you, it's a shame.

 

Don't lose hope. HB

[Takinthepagain]

hello honeybee,

 

i do operate a bonus system which basically allows stylists to work longer hours if they wish to improve their overall wage. thinking about it, i suppose you could argue that as a result of the pregnancy risk assessment that we agreed should include extra breaks, this could be classed as being different to before she was pregnant.

 

suppose i just need somenone with some common sense to chair the tribunal.

[Takinthepagain]

hb

 

forgot to say yes i have all this in writing

[honeybee13]

That sounds good ttp. Good luck with this. Come back to us if you need anything else.

[elpulpo]

tttygjjf

Edited March 17, 2010 by elpulpo

[elche]

Hi Marriefab

 

Sorry to hear about the employees' treatment.

 

People use the word 'victimised' a lot in the employment sense. Remember that legal victimisation would mean the employee having to show LFT and the reason for that LFT being because the employee performed / intended to perform a 'protected act'.

 

Is the employee in your OP not being treated this way because employer A (hair job) thinks that by working as a waitress whilst signed of sick is an attempt to defraud the SSP scheme / them?

 

Speak to employer A and explain that the employee is signed of sick due to the chemicals used / pregnancy, and is perfectly within their rights to do another job that is safe to do.

 

Hope this helps

 

Che

[elche]

Ooops that was a reply to a post way back on this thread ......

[elche]

 

From a neutrals point of view the grievance issue cannot hold any water. From the business view point new clients should not go with some one who is about to leave?

 

Well hi takingthepagain.

 

I do sympathise. Now you have received the ET1 who is dealing with your ET3?

 

Remember your time limit for drafting a reply. Whilst you can sometimes amend this, it is a CRUCIAL document in defence of her claim and you should get someone who know what they are doing to draft this for you.

 

It is an interesting case - let me think about the discrim 'angle' and I'll come back to this - but my first thought is - If an employee was leaving their job for whatever reason, and you had advance notice would this rule about new clients, have applied to them?

 

If the answer to this is yes then this is good for you - BUT - how can you prove this?

 

Che

[elche]

suppose i just need somenone with some common sense to chair the tribunal.

 

NB and having re-read some of your posts takingthepagin _ i would advise you get some advice as in the area of pregnancy related employment rights 'common sense' does not always apply.

 

Many pregnancy rights are just 'black and white' and can (for right or wrong) seem a bit unfair on the employer - be careful about the basis of your defence - as you could in effect unknowingly admit a form of sex discrim in the way she was treated - if you have already submitted your ET3 you may have to make an application for permission to serve an amended defence.

 

You may well have a defence, and I agree that ET's are normally pretty fair on small employers, but I woudl still advise some professional advice - our company is part of a BIS pilot project offering free insured employment advice to SME's in certain areas - not to sure about the BIS side but as I understand it if you are eligible it is free!

 

Check out

 

http://www.bis.gov.uk/Policies/better-regulation/reviewing-regulation/anderson-review-of-guidance-provision/taking-the-insured-advice-recommendation-forward

 

Che

Edited March 25, 2010 by elche
BIS keep moving the link!

[mariefab]

Oh dear!

I strongly suggest that you follow elche's recommendation to seek advice before carefully completing your ET3.

 

You'll need to put your professional hat on and focus on what is relevant to the claim (ET1) and disregard the other issues.

 

The manager who completed my daughter's ET3 was so busy filling 3 pages with personal insults and derogatory gossip and opinions that she failed to enter any form of defence to the actual claim. I was livid but our solicitor cried with laughter when he read it.

[mariefab]

A couple of things for you to think about...

 

After conducting the risk assessment did she expressly consent to the extra breaks?

Was she offered the same opportunity as before to work longer hours for the bonus you mentioned?

If yes, can you prove this?

Has she earned less than she did before pregnancy as a result of the above?

 

FYI cutting a pregnant employees hours without her permission can qualify as unlawful sex discrimination.

Edited March 8, 2010 by mariefab
typo

[skonk]

I'd like to second mariefab's advice. Keep us informed on how it goes. It's so easy for us all to comment on the rights and wrongs of the situation, but when it all comes down to what is being done legally, peoples opinions don't matter. Elche is spot on about rights for pregnant staff. For what someone may think is pretty straight forward, legally, it can be a minefield.

 

As someone has said, hopefully you have everything written down, and this should come in handy for your case. Good luck!

[Takinthepagain]

Well hi takingthepagain.

 

I do sympathise. Now you have received the ET1 who is dealing with your ET3?

It is an interesting case - let me think about the discrim 'angle' and I'll come back to this - but my first thought is - If an employee was leaving their job for whatever reason, and you had advance notice would this rule about new clients, have applied to them?

 

If the answer to this is yes then this is good for you - BUT - how can you prove this?

 

Che

 

 

At the moment there is just me and my husband dealing with the et3. The lady at acas said if we put down exactly what we told her, that there should not be anything to worry about. The rule about new clients would apply to anybody leaving for whatever reason. I had asked her not to take any new clients back in October simply because she was already full.Half the ET complaints are explained simply by the fact that everyone new she would be leaving on maternity leave and she was fully booked. It was only this one tuesday when she was not fully booked. Any other day, she could not have made the accusations.

 

Her earnings per hour have not been any different than before she was pregnant save for the Xmas period which is always higher.

[Takinthepagain]

A couple of things for you to think about...

 

After conducting the risk assessment did she expressly consent to the extra breaks?

Was she offered the same opportunity as before to work longer hours for the bonus you mentioned?

If yes, can you prove this?

Has she earned less than she did before pregnancy as a result of the above?

 

FYI cutting a pregnant employees hours without her permission can qualify as unlawful sex discrimination.

 

 

Hi mariefab,

Yes she did, the risk assessment was carried out between us with us both having an input. We talked about how best to manage long periods on your feet and agreed that regular breaks were the best way forward. I also relieved her of any cleaning duties that were originally included within her employment role. We both signed the agreement to cnfirm we were happy with the contents.

 

As said earlier, she has earned the same as before she was pregnant.

[elche]

At the moment there is just me and my husband dealing with the et3. The lady at acas said if we put down exactly what we told her, that there should not be anything to worry about.

Is this 'lady at ACAS', the conciliator assigned to your case (seems unlikely as ET3 not even drafted yet), or just one of the advisers on the 08457-474747 number?

 

If the latter then I wouldn't put too much faith in their advice as it can be extremely variable.

 

Has the employee's ET1 been drafted professionally, is she represented?

 

Che

 

[Takinthepagain]

hi che,

i believe that the ACAS lady is the conciliator as she rang me having received a copy of the ET1. The ET1 has not been drafted professionally and she is not being represented professionally. She has however got her uncle involved who appears to work in the HR dept of a large multinational co. He has already got the hump because i refused to talk to him about the case there not being written authorisation to do so in place. His reply was that as he had copies of the letters i had sent to the employee in his possession he must be authorised.

[elche]

i believe that the ACAS lady is the conciliator as she rang me having received a copy of the ET1.

 

Well nice to see ACAS can pull their finger out on occasion - all I ever seem to hear is how busy they are - but workloads must differ throughout the country - anyway I suppose it is a potentially good sign for you as C is unrepresented - at least you are on an equal footing in this respect.

 

There is some free employment law advice available to businesses, if it were me, and I was facing an ET claim from a pregnant employee, then I would want some professional help before drafting my defence - when pregnant employees win at ET they normally get large compensatory awards as the ET often recognises the difficulties they would face looking for new employment.

 

Remember ACAS are there to conciliate, and whilst they may point out the strengths and weaknesses of each party's case, they are not there to give you (or her) legal advice.

 

Best of luck

 

Che

[Takinthepagain]

Just bringing the thread up to date. Been a few developments over the last few days.Plenty of posturing from the uncle over grammar and layout of letters etc. Decided to bring the event to the boil and put her(him) on the spot. ended up with written confirmation she had purposely lost the business revenue and that she saw no problem with raising grievances aggressively in front of clients and other staff. Carried out disciplinary meeting to verbally confirm everything in writing and fired her afterwards.

 

Now just got the employment tribunal to deal with but surprise surprise she wants to discuss informally now. Although has not withdrawn tribunal.

 

Didn't run with the working elsewhere business as she provided plenty of ammunition elsewhere and came back with the working for a friend routine. Got to hand it to her on the sick note front. After suggesting pulling pints and waiting on would have a greater effect on "complications of pregnancy" than hair dressing, new sick note appears from different medical practice detailing stress through being victimised in the work place three weeks after she was last in the salon.

[elpulpo]

Hum. Have you sought professional legal help over this?

[Takinthepagain]

Hi elpulpo. Yes i have although the advice varies depending upon which person you speak to. There are a variety of ways of looking at this however, i have ultimately decided that she is trying to take me for what she can get hence i am taking the head on approach rather than tip toe ing round the problem. I'm just keeping the pressure on and letting her trip her self up. Ive stuck to the statutory requirements but have been firm at the same time.

[elpulpo]

You've sought the advice of a solicitor specialising in employment law, or a reputable, qualified firm of HR professionals?

It just seems, by what you posted tonight, that you might have gone off course badly.

Can you elaborate on what has happened recently?

[Uncertain]

.........Carried out disciplinary meeting to verbally confirm everything in writing and fired her afterwards............

 

............ new sick note appears from different medical practice detailing stress through being victimised in the work place...........

 

So, you have a pregnant employee who has a certificate signed by a qualified doctor for "stress through being victimised in the work place" and you have fired her?

 

Your legal advice "varies depending upon which person you speak to"?

 

Well, quite frankly, you are either very brave or utterly stupid!