1 May 2012
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Off sick when made redundant
Q. I am on long term sick and now on half pay. I have just been made redundant after six years with the company. They told me that I am expected to use up my annual leave during my one month contractual notice period. I was hoping they would pay me in lieu at the end of my notice but I think they just want to get away with paying me half pay until I finish.
A. There’s quite a bit to unravel in this one. The first question I would ask is why you are only getting one month’s notice. Your contract may say one month but you have a statutory right to one week for every year of employment up to a maximum of 12 weeks, so you should be getting six weeks notice for a start. Your employer can insist that you take leave during your notice period, but under the Working Time Regulations they have to give you twice as much notice as the number of days leave they require you to take, so as you have been off sick and have 28 days outstanding they will have to give you 56 days notice. If they can’t do that then they can’t force you to take it.
As far as pay is concerned, it gets more complicated. If an employee is off sick during their notice period they will have the right to their normal pay and benefits, as set out in the contract of employment, provided their statutory notice is longer than their contractual notice by at least one week. As you have one month contractual notice and six weeks statutory you are OK. Had your contractual notice been longer than your statutory notice you would only be entitled to your sick pay.
In the case of annual leave, if you took it during a period of long term sickness (which you are entitled to do) then that would be paid at your normal rate of pay, even if you weren’t receiving sick pay.
Representation during investigations
Q. I am a local rep and one of my members has been called to an investigatory hearing over a charge of gross misconduct. She has asked me to attend with her but the manager has said she’s not allowed a rep. Is that right? And if so, what should I advise her to look out for?
A. There is no general right to representation at investigatory hearings, but you should check the company disciplinary procedures to see if there is any agreement between the company and the union to allow for representation. If not then the employer still needs to take steps to act fairly and impartially, and the depth of the investigation should be commensurate with the severity of the allegation. So for gross misconduct, where a dismissal is likely it must be far more rigorous than for something that may only merit a written warning. You should advise your member that if she thinks the meeting is turning from an investigatory meeting into a disciplinary, for example they make statements like ‘you did it’, rather than asking ‘did you do it?’ then she should seek an adjournment until she has a rep available, and make sure her reason is minuted so they can’t accuse her of refusing to attend.
As a rep, you should try to ensure that she has been supplied with any relevant documentation, such as witness statements, before the meeting and that she be given time to prepare. It should also be ensured that the investigation has been even-handed and confined to the facts of the case. It should search all the relevant evidence, and not just any evidence that supports allegations against an employee. As she has not been suspended you could also challenge the seriousness of the allegation if it goes to a disciplinary hearing.