Questions we have been asked this month

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21 November, 2017

Q. In 2015 member of staff in discussing workload with another more junior member of staff has purportedly authorised an increase in hours for the junior staff member equating to 7 hours per week. The junior staff member had not realised until now and has since raised a grievance regarding the underpayment.

A. It is likely that due to the time which has elapsed since the extra hours were started, that the increase will have been incorporated as a term of the staff member's contract via custom and practise.

Therefore failing to pay the difference would most likely result in a breach of contract claim for the monies owed as a result of the underpayment.

The grievance would need to be investigated, and a potential outcome to the process could be a Settlement Agreement where you would pay the monies owed in exchange for the member of staff to waive her breach of contract claim. By doing this it avoids

Practically speaking one of the recommendations as part of the grievance could be disciplinary action against the staff member for purportedly authorising the increase.

Q. A member of our support staff has been absent for several months now with fit notes quoting a variety of different reasons for absence. We have been unable to contact her to arrange a welfare meeting nor has she responded to any of our requests regarding Occupational Health referrals. Where do we go from here?

A. An employee has a duty under their contract of employment to keep in touch with their employer whiles absent due to sickness. If an employee is not abiding by this duty, then there is potential for disciplinary action. However in this situation it is advisable to tread carefully given the lack of evidence as to the nature of their absence.

The only option, once all other methods of communication have been exhausted, is to write to the staff member with a view to holding a formal meeting to discuss the nature of their absence. The employee should be warned that their absence at the meeting (it is always reasonable to provide two opportunities for an employee to attend) could result in you having to take a view on the limited evidence available as to whether they are able to remain in employment.

Notwithstanding this, any clear signs which point towards disability or other Equality Act considerations should be carefully considered before arriving at a dismissal.

If you are looking for any more information with regards to our services view our Education section. You can also contact Ruth Rule-Mullen in our Education department via email or phone on 01772 220195. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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