Advice please...bit complicated

[alex2258867]

Hi,

 

Hoping someone can shed some light on a couple of issues.

 

My partner works as a chef for a contract caterer in a private school. He is supposed to work Tuesday - Saturday (Mondays off), but has agreed that he will work every Monday and have 11 weeks holiday a year.

 

This Monday he was sick (stomach bug), he was fine after 24 hours, but his employer has told him he has to be clear for 48 hours before returning to work. This means despite being well enough to work on Tuesday, they have told him he can't return till Thursday.

 

He asked his Manager if he can take the sick days as holiday (considering he has 11 weeks a year) and they have told him categorically no...the three days that he has been off will be deducted from his pay.

 

My questions are:

 

1. As he works a Monday as a favour to the employer, if he was sick that day, shouldn't that be taken as a day off and one day deducted from his holiday entitlement?

 

2. Despite being fit to work, his employer tells him he can't return to work and they deduct the days they have told him he can't work from his pay, surely this cannot be right?

 

Any advice would be gratefully received

 

Many thanks

[Uncertain]

Hi,

 

Hoping someone can shed some light on a couple of issues.

 

My partner works as a chef for a contract caterer in a private school. He is supposed to work Tuesday - Saturday (Mondays off), but has agreed that he will work every Monday and have 11 weeks holiday a year.

 

This Monday he was sick (stomach bug), he was fine after 24 hours, but his employer has told him he has to be clear for 48 hours before returning to work. This means despite being well enough to work on Tuesday, they have told him he can't return till Thursday.

 

He asked his Manager if he can take the sick days as holiday (considering he has 11 weeks a year) and they have told him categorically no...the three days that he has been off will be deducted from his pay.

 

My questions are:

 

1. As he works a Monday as a favour to the employer, if he was sick that day, shouldn't that be taken as a day off and one day deducted from his holiday entitlement?

 

2. Despite being fit to work, his employer tells him he can't return to work and they deduct the days they have told him he can't work from his pay, surely this cannot be right?

 

Any advice would be gratefully received

 

Many thanks

 

Unless one of the other regulars on this forum knows the exact answer you will have to run this past ACAS (easiest at 8.00am as phone lines get very busy).

 

The sad thing with this type of rule is that, should he be ill in the same way again, it will be very tempting to say it was a migraine or whatever that is not contagious. Then, if there is a good medical reason for the rule, everybody ends up suffering.

[elpulpo]

Tricky. First of all, your employer is right to suspend your partner if he has suffered from a stomach bug. Food Hygiene Regulations require them to do this.

I don't know if there's a concrete statutory answer to this situation -

I'm torn between saying that as he's not in a condition to work, he's on the sick and the company sick pay T&C's apply.

OR

The company should pay him because they're effectively suspending him.

Basically, I don't know.

 

Given that he works in a school, are his holidays taken around the school holidays? Does he have any spare days that he can use during term time?

[alex2258867]

Thanks for your response guys.

 

I will contact acas and ask them to clarify the situation.

 

Many thanks

[zingy]

Alex, you're best to contact ACAS but I'd say the answer depends on his contract.

 

1. No, as this day needs to be recorded as him being sick, not on holiday.

 

2. I'd say this depends on his contract. I've worked for a number of hospitality companies and most contracts will allow up to 3 days sickness in a 90 day period (Paid) then at the discretion of the manager up to 7 days - and then statutory after that.

 

 

Also, they're not suspending him on the 48 hour rule, they're taking due diligence steps in regards to the The Food Safety (General Food Hygiene) Regulations 1995 - because he was sick and is a food handler.

 

You'll also find that if he does have a similar experience in the future, says its a migraine and someone picks up his bug (and is traced back to him), then he might have a few tough questions from the EHO.

[alex2258867]

Thanks Zingy. Plan to speak to acas for clarification.

 

The problem with the contract is...he doesn't have one. They seem to make it up as they go along.

 

I understand your point on any future illness however, if they have told him he can't work and they won't pay him, I'm afraid he won't be in the position financially to tell them the truth.

 

Perhaps that's something employers should consider? Tell the truth, don't get paid, don't tell the truth and be paid...ridiculous situation really.

 

Thanks for all your advice guys, much appreciated.

[elpulpo]

Does he not have a written statement of the terms and conditions of employment? He should be provided with one within 2 months of starting work.

[zingy]

Pretty sure, under employment law, that 90 days of continuous employment means that T&Cs should be given to you, but may have changed in the last 6 months or so.

[elpulpo]

It's still there, Sec.1(2) ERA 1996

[alex2258867]

Thanks for your continuing interest guys.

 

He has never received a contract nor T&C's. The only thing he was given was a letter confirming his hours of work, that he will work every Monday (supposed to be a day off) and in return he will receive 11 weeks holiday per year.

 

I still do not think that it is acceptable for his employer to deduct a days pay for sickness when in theory he should not have been working that day. He covers on a Monday as a favour to them.

 

For the six weeks prior to Christmas he worked over 60 hours a week for them. He has also never signed anything to agree to work more than 48 hours a week.

 

He has his 'returning to work' interview this afternoon, so we will see what happens as a result of that.

 

Will keep you posted.

[zingy]

It's still there, Sec.1(2) ERA 1996

I stand corrected.

[zingy]

 

For the six weeks prior to Christmas he worked over 60 hours a week for them.

 

The joys of hospitality - used to love those 100+ hour weeks;)

[elpulpo]

How many hours a week does he typically work?

Was he paid for the overtime at Christmas, or time in lieu?