Transport Salaried Staffs' Association

Q. I fell after being pushed by a sub-contractor’s employee at my workplace and as a result I am now partially disabled. I wanted to claim compensation but my employer says they are not responsible because the person is employed by another company.

A. Your employer is responsible for your health and safety at work. Even if the person is employed by another company, the contract for the work is likely to have been issued by your employer, and they are also likely to have a considerable say in where, when and how those workers carry out their duties. In Hawley v Luminar Leisure Ltd the Court of Appeal found that the main employer exercised sufficient practical control over the sub-contractor to make it the ‘temporary deemed employer’ for the purpose of vicarious liability.

If you have not already done so, ensure that details of the incident are recorded in the accident book. The TSSA’s Solicitors will pursue your claim for compensation.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I have worked in a call centre for six months, employed by an agency. Now there are some permanent jobs going and I have applied for one but a colleague mentioned that my agency may charge a ‘temp to perm’ fee if I take a job there and I am worried that it could put them off.

A. As you have been there six months you will be OK. Under the Conduct of Employment Agencies and Employment Business Regulations 2003 an agency can still charge the employer but only where you transfer from the agency to the employer’s permanent staff within either 14 weeks of the start of your first placement with the employer or 8 weeks of the end of any placement, whichever ends later. If the transfer takes place after this time the agency will not be able to charge your employer a ‘temp to perm’ fee.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I work for an agency and the company I am placed with is very slow in sending in my timesheets. Is the agency allowed to refuse to pay me until they receive a signed timesheet? I often have to wait weeks for my money.

A. You are piggy in the middle here but the argument is between the agency and the hirer. An agency cannot withhold payment from you simply because they have not received payment from the hirer, or because you cannot produce a signed time sheet. It is the agency’s responsibility to establish the hours that you actually worked and you should be paid accordingly.

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. One of our regular customers has a habit of making offensive remarks and sexual references, which I find upsetting. I have complained to my boss at least twice but he just laughs and says there is nothing he can do as she is not an employee and she brings in a lot of business.

A. So he puts revenue above the comfort and wellbeing of his staff. Well the Regulations state that an employer will be liable if a third party subjects you to harassment in the course of your employment and he fails to take reasonably practicable steps to prevent it. The employer must be made aware that you have been subjected to harassment by a third party on at least two other occasions. You have told him at least twice so let’s see if a grievance on the grounds of sexual harassment wipes the smile off his face.

NB. Since this was first published the ConDem government has threatened to remove this section of the Equality Act as a “burden on business” so watch this space!
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I asked a girl at work if she would like to come for a drink. She said no, and I thought no more about it. Now my boss has said she has complained about harassment, but I only asked her once and have not mentioned it since.

A. The 1997 Protection from Harassment Act says that harassment has to be “a course of conduct”, so it cannot arise out of a single incident. Once you were made aware that she did not want to go out with you, you did not ask again, so your boss should dismiss her complaint.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. Every year we have an office party and it’s always in work’s time so we are obliged to attend. Last year my boss got me in a corner and started to fondle me and I found it really embarrassing. I’m worried the same thing may happen this year and I’m already feeling stressed about it. I would go sick but I’ve had time off this year and I don’t want to trigger the Managing for Attendance process.

A. Why shouldn’t you go and enjoy yourself? If this only happened once last year at the staff party it may be difficult to show harassment, which must be more than just one incident. You should consider writing to your boss and telling her that you found her behaviour last year unacceptable and request that it is not repeated. Keep a copy and mention it to your local rep. If she does it again you will have grounds for a grievance and evidence to back it up. It may also be a good idea to stay sober (just this once).

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. When I phoned about my manager bullying me I was advised to raise a grievance, but I’m worried that she will start to pick on me even more, or even sack me for being a ‘troublemaker’.

A. This sort of behaviour can only be rooted out by making an official complaint. You must not be victimised for pursuing a statutory right such as a grievance, and if necessary you can take your employer to an employment tribunal. A dismissal for pursuing a statutory right would be automatically unfair. As a member you would have the full backing of the union and, if necessary, our lawyers.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. My boss is always swearing, using really foul and abusive language, and I find it very intimidating. I have complained but I was told it was normal in my industry and in effect put up with it or leave.

A. Up to now it may have been “normal”, however, it is now more widely recognised that swearing may create for certain employees an “intimidating, hostile, degrading, humiliating or offensive environment”. Therefore, swearing is potentially an issue of harassment and bullying. It does not matter if swearing is normal among a group of co-workers, if it is overheard by someone who finds it offensive, it could lead to a claim under harassment or anti-discrimination legislation.

Your employer should have a proper policy where swearing will not be tolerated if it is used with the intention of either bullying or harassing the person being sworn at, or creating an intimidating, hostile, degrading, humiliating or offensive environment for anyone else.

This time make your complaint a formal grievance, so your employers will have to address the issue.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I had an affair with my boss, which I broke off when my wife found out. Now she is constantly picking on me and giving me menial jobs to do. How can I end this situation amicably?

A. Under the circumstances I doubt that you can. However, in the workplace you have certain rights and one of them is not to be harassed or victimised. If you can, speak to your boss and ask her to stop bullying you. If you find that too difficult or she ignores your request you will need to pursue a grievance. Check your company handbook or call the Helpdesk to find out what the procedure is.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. My boss is always making derogatory remarks about women in general which I find very offensive, even though they aren’t aimed directly at me. When I complained I was told that he wasn’t having a go at me personally and basically to ‘shut up and get over it’.

A. The definition of harassment has now been amended to bring it in line with the Equal Treatment Directive. The new Regulations provide that harassment will occur if there is unwanted conduct “that is related to her sex or that of another person”. The new definition allows claims for harassment to be brought by somebody in your position who is not themselves subjected to the unwanted conduct but nevertheless finds it offensive. You should speak to your local rep about taking out a grievance. These provisions, of course, would apply equally to a man in a similar position.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I won a grievance against my manager for setting unrealistic targets that amounted to bullying. I was moved to another department, which I am quite happy about, but I have overheard my former manager making snide remarks about me to other colleagues and while each instance seems nothing much it does get wearing after a time.

A. Although the remarks aren’t made directly to you they are made so that you can hear them. In the case of Green v DB Group Services (UK) Limited, harassment was found to arise from “behaviour by colleagues which might seem childish and petty (in isolation) but dealing with it on a daily basis had a cumulative effect”, so I would say this is definitely harassment. You can take out another grievance and you could also remind your HR Department that harassment is a criminal offence and if they don’t take steps to stop it they could be vicariously liable.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I have been offered the trip of a lifetime, travelling with a friend for six months. My company offers a career break scheme which I would like to take advantage of but looking at the company handbook I’m not sure that I will get my old job back when I return.

A. You have to be very careful with many of these schemes. Some will guarantee a return to your old job as though you hadn’t been away, some offer a return to a similar job on similar terms and conditions and some might possibly take you back perhaps if there’s a vacancy but sorry no guarantees. Once again, carefully read the small print and get any guarantees in writing before you go and make sure you comply with any conditions while you are away.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I entered a salary sacrifice scheme which lowered my salary and my employer gave me the difference in childcare vouchers to spend at my local nursery (I also saved on tax and NI). Now my mother-in-law has come to live with us and she is going to look after our twins and I don’t need the vouchers but the company is refusing to reinstate my salary. They say I have to wait six months before they’ll review it.

A. You really have to read the small print when you sign up for schemes like this. A salary sacrifice is a permanent change to your contract unless your agreement says otherwise and even then many schemes say they will only be reviewed annually or following certain events, such as the child starting school. Which means you could be stuck with a lower salary and a pile of useless vouchers. Unless safeguards are written-in to a scheme when it is introduced, salary sacrifice schemes may also affect your pension, ability to obtain a mortgage and even your right to State benefits, such as Statutory Maternity Pay, so, read the small print and contact your union rep before agreeing.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I understand I can now apply for flexible working in the same way as people with young children as I am a carer for my mother who is disabled and lives with me.

A. Since April 2007 you also have the statutory right to apply for flexible working if you are a carer who cares, or expects to be caring, for a spouse, partner, civil partner or relative (including sister or brother-in-law) who lives at the same address as the carer. The same rules apply as for children so there is no guarantee it will be granted, but you do have a right to representation and appeal.

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I was speaking to a friend in the pub who mentioned that I can now apply for flexible working until my child is seventeen. Is she right?

A. The law changed in April 2009 to allow anybody to apply for flexible working until their child’s 17th birthday. You will need to follow the normal application process by applying in writing and suggesting ways in which your request can be accommodated. You have a right to a personal hearing to discuss your request and an appeal if necessary.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I overheard somebody in the pub talking about flexible working and I wondered if it applied to me. My stepfather is now disabled and is moving into a granny flat we have built for him. I will need to alter my hours as there are certain times of the day when he will need my help.

A. Isn’t it amazing what you can find out in your local. According to ACAS, a ‘carer’ is somebody who is or expects to be caring for an adult who:

1. Is married to or the partner or civil partner of the employee; or
2. Is a relative of the employee; or
3. Falls into neither category but lives at the same address as the employee.

Your stepfather counts as a relative for the purposes of requesting flexible working (and is also covered by point number 3) so you can apply.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I work in travel and after a few problems at my old place I left. My contract said I couldn’t work for a competitor in the same area of work as my old job for six months after leaving, without the express permission of my previous managing director. I have been offered a job by a competitor doing a job totally different from what I did before. Can I take it?

A. Ordinarily, as it’s a different area of work I would say probably (which is as near as you’ll get to a definitive legal answer). However, you signed a compromise agreement which says you can’t work in any capacity for any competitor for six months. There’s no way round that one, unless perhaps you write to your old MD as suggested in your previous contract, explain what your new job will be and see if he’ll let you take it. If he says no there’s nothing you can do. If you took the new job without permission he could sue not only you but your new employer as well.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I fell out with my boss and she gave me a poor reference. Can I do anything about it?

A. A former employer is not obliged to give a reference but if they do they have a duty of care to ensure that it does not contain false statements and is not malicious. It has to be accurate and not misleading. If your employer failed to take care in providing a reference, you may be able to bring a negligence claim for any damage suffered as a result. You have to be able to show that the reference is misleading, is likely to have an affect on a reasonable recipient and the employer was negligent in providing it.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. My boss had a go at me over a mistake that somebody else made. I lost my temper, said I was resigning and walked out. When I’d had time to cool down a bit I asked for my job back but they said no. A friend in the pub said that as the boss was wrong to blame me I could claim constructive dismissal and go to a tribunal.

A. I generally find it usually makes sense to ignore any employment advice you get from a ‘friend in the pub’.

Constructive dismissal is where the employee resigns on the grounds that the employer’s conduct was so bad as to amount to what is known as a repudiatory breach of contract, an act or series of acts that strike at the root of the contract. This is where your problem lies. Mere unreasonableness is insufficient to amount to a repudiation of the contract by the employer. A telling off over something that wasn’t your fault may be upsetting but if your boss can show that at the time he acted reasonably then that wouldn’t be a repudiatory breach.

And of course, to claim constructive dismissal you have to resign (in writing) so you are out of a job while you try to fight your case. Worse still, as you have found, if you do cool down a bit they don’t have to take you back. That is why on the Helpdesk we would very rarely even mention constructive dismissal – we know how few cases are won and how serious they have to be to win. A formal complaint through the grievance procedure would most likely have got you an apology and you would have kept your job. This may not help you now but in future always phone the Helpdesk or talk to your rep before you take any rash actions you may regret later. Now that everybody has calmed down why not see if your rep can talk your boss into taking you back?
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I turned up for work but our systems were down so we were sent home – now they are saying we have to take the shift as leave or work extra to make it up. I checked my contract and it doesn’t say anything about what happens if there’s no work.

A. In any case like this, where there is a question of what your manager can or cannot get away with, always check your contract. In any contract there is an implied term that you will work and the employer will provide work. You turned up prepared to work. The employer didn’t have any work – the reasons are immaterial, so that’s their fault not yours. They can only force you to take leave or work extra to make up the time lost if they are allowed to by an express clause in your contract. If they don’t pay you for the shift then that is an unlawful deduction of wages and you should take out a grievance.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. We have been told that our shop will now open on Sundays and we will have to work every other Sunday. Do we have to?

A. If you were employed prior to 26 Aug 1994, or started after that on a contract that did not require Sunday working you are a Protected Shop Worker and you have an automatic right not to work Sundays. If you started after that date on a contract that required Sunday working you can opt-out by giving your employer 3 months written notice. After the notice period you have a right not to work Sundays but during the notice period you can be required to work them. You cannot be disciplined or dismissed for opting out of Sunday work.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I started work in a travel agent’s two and a half months ago and my contract says I have to work Sundays but my weekend childcare has fallen apart and I really need to have Sundays off now. My manager is insisting that I work them so I think I might have to leave.

A. If, when you started, you had been given your statutory Explanatory Statement, as required by section 42 of the Employment Rights Act 1996, you would know that all shop workers have the right to opt out of Sunday working, even if it is in their contract, by giving three months notice. However, as they didn’t give you that explanatory statement (I wonder why) then you only have to give one month’s notice. Write saying you object to Sunday working and sign and date the letter, then after a month they can’t force you to work, or subject you to a detriment for opting out.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I have been offered a new job but the company say I have to wear a navy blue blazer and grey trousers, which I will have to buy. Shouldn’t the employer have to pay for clothes which they specify?

A. Employers may insist on a dress code and many choose to provide a uniform or a clothing allowance. It is not compulsory for the employer to provide uniform clothing, so that is something you may wish to consider before taking the job.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. My contract says I work 09.00 to 17.30 with one hour for lunch. Some time ago my manager agreed that I could start at 09.15 after dropping my children off at school, and make it up by taking a shorter lunch break. Now I have a new manager who says I have to be in at 08.45 every day to attend briefings. Can she change my start time like this?

A. There are two issues here. Firstly, although nothing was put in writing there was an agreed change to your contract to start at 09.15 and so they need your agreement to change back. If they don’t believe it was agreed ask how come you’ve been allowed to do it for five years. Secondly, even if you did decide to revert to your original nine o’clock start time, she has no right to insist that anybody starts earlier to attend briefings. Stick to your guns and if she keeps trying to make you change take out a grievance.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. We have been made redundant, but we are required to work our notice. Trouble is, there is no work and we have to sit here with nothing to do and we can’t bring in a book. Can we insist on garden leave if there is no work? We have a month to go.

A. You can’t insist on garden leave, if the employer wants you into work your notice you have to go. It could be they are trying to bore you into walking out in breach of contract so you lose your right to redundancy pay. There are some things you could do. Remember if you are under notice of redundancy you have a statutory right to reasonable paid time off to look for work. All public libraries have newspapers, and many now provide coffee and comfortable armchairs while you browse the vacancies columns. Or you could walk round the shopping centre handing in your CV to likely employers. Your manager may say that is unreasonable, but if you have no work at all then you can counter-argue that it is reasonable, using the grievance procedure if necessary. In fact if your colleagues all take out grievances you could represent them at their hearings. With appeals that should fill your days quite happily.

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I have applied for a job in a travel agency and one of the questions on the form was about criminal convictions. I was put on probation 15 years ago for soliciting (I was only 17). If I don’t tell them and they find out what will happen?

A. If you lie on an application form the employer will most likely sack you and they will have a legal right to do so. However, under the Rehabilitation of Offenders Act 1974 after a certain time many convictions become ‘spent’. As you have not been convicted of a further offence during the ‘rehabilitation period’ (for your offence one year) you have become a ‘rehabilitated person’. This means that:

• you do not have to declare the conviction when applying for a job
• you are given protection against dismissal for reasons of the conviction and
• employers cannot prejudice you in any way because of your spent conviction.

It is worth noting that a conviction resulting in a prison sentence of more than 30 months can never become spent, and there are some exceptions where people apply for jobs working with children, the sick, disabled people and the administration of justice.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I was investigated for a breach of discipline and now I’m called to a formal hearing. The same manager is taking the hearing as did the investigation. I thought they couldn’t do that?

A. The ACAS code of practice says that ‘where practicable’ different people should carry out the investigation and the disciplinary hearing. If the employer can show that it isn’t practicable, for example if it’s a very small company, they can get away with it. For most companies though this shouldn’t be a problem so if you don’t think you will get a fair hearing you should get your rep to object.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I represented two colleagues at a gross misconduct disciplinary hearing. One was given a final warning and one was dismissed. I thought employers should treat both the same?

A. As a general principle employers should show consistency in their treatment of disciplinary offences, but there may be circumstances in which an employer may be able to treat employees differently for the same offence, such as where they had different disciplinary records. For example, in London Borough of Harrow v Cunningham (EAT/1098/94) the Employment Appeal Tribunal (EAT) ruled that the employer is entitled to take into account any aggravating factors (such as a poor disciplinary record), in reaching its decision to dismiss one employee but only issue a final written warning to another for the same offence.

Before formulating your appeal you need to check if the employer relied on any aggravating factors to dismiss one person and not the other. You will have a strong case if you can show the employer acted unreasonably.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I have been called to an investigatory hearing. The company says I can’t bring a rep but I feel vulnerable without one.

A. Unless your contract or conditions of service say otherwise, you are only entitled to a representative at a hearing at which formal disciplinary sanctions may be applied, such as a written warning. Be aware that if you feel the hearing is turning into a disciplinary hearing, or you are being threatened with sanctions, you should request an adjournment until you can reconvene the meeting with a rep present.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. At the office party we were caught in a compromising position in the boss’s office. Now I have been called to a disciplinary hearing. Could they sack us for it?

A. The Human Rights Act does give you a right to a private life at work, but there are limits. Your employer is entitled to expect some standards of behaviour and may well view this as gross misconduct. Depending on their disciplinary procedures this could be a sackable offence. Make sure you take a union rep with you to the hearing. They will be trained to help you put your case and advise you of your options if it doesn’t go your way.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I represented two colleagues at a gross misconduct disciplinary hearing. One was given a final warning and one was dismissed. The only difference was the person who was dismissed had a final written warning on his file that had expired a month ago. I thought the employer could not take expired warnings into account.

A. That is the usual case, and in the case of Diosynth Ltd v Thomson [2006] the EAT held there was an unfair dismissal because the employer took an expired warning into account. But (there’s always a but in employment law) more recently the Court of Appeal (Airbus Ltd v Webb [2008]) held that there was no legal principle stating that an employer was bound to ignore a spent warning when deciding the disciplinary penalty to apply. The Court also went on to state that Diosynth was not an authority for the proposition that a previous spent warning should be ignored in all circumstances.

So where does that leave you as a rep? You should always expect expired warnings to be ignored, but at a tribunal, cases depend on the individual circumstances. In the recent case the reason for dismissal was the gross misconduct, not the final warning. The employer used the final warning as an aggravating factor and so the dismissal was fair.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I have a disciplinary hearing due and I wanted to take a colleague I have known for ages who is not a rep now but who had lots of experience in the past. The company says that because he works for a different part of the organisation he is not allowed to accompany me. Do I have to find somebody else?

A. Section 10(3) of the Employment Relations Act 1999 says that where you “reasonably request” to be accompanied the company has to allow it. Among those listed as being allowed to attend is simply “another of the employer’s workforce”. “Reasonably” is not defined in the statute but the ACAS code of practice says it would be unreasonable to request somebody who is geographically remote where there is somebody suitable qualified available locally. This does not apply in your case, therefore, not only must they allow your colleague to accompany you, they must give him paid time off to attend.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. My company received a complaint about me eight months ago. Nothing much was said at the time but now they have decided to start disciplinary proceedings and have said it could lead to dismissal. Can they do this after such a long time?

A. I suppose they can, but it could be expensive for them. In the case of RSPCA v Cruden the Employment Tribunal said that a dismissal was unfair simply because of the long delay in initiating proceedings and the EAT agreed. According to the House of Lords, in a disciplinary case the employer’s action should be ‘reasonable in all the circumstances’, especially if the outcome may be dismissal. This long a delay must make it unreasonable, as people’s memories fade and documents may no longer be available. Get your rep to help you submit a grievance on the grounds that they are acting unreasonably. That should be concluded before any disciplinary is held.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I post a regular blog on the internet (in my own time) and recently I made a few comments about the company I work for. I’m now being called to a disciplinary hearing for gross misconduct, bringing the company into disrepute. The letter says I may be dismissed, what should I do?

A. Personally, I think you should cancel your broadband contract. It never fails to amaze me how many people assume that employers don’t read blogs, look at Facebook, or generally spy on their employees’ (and job applicants’) Facebook pages. If you wouldn’t say it to your employer’s face, don’t put it on the net. Remember, stuff can hang around on the internet for years and your next employer can read it too!

Having got that off my chest, there are a couple of things you can do. Firstly, contact your local rep. Secondly, check to see if your employer has any written internet policy. If they haven’t, your rep can argue that without such a policy in place any disciplinary action is unfair. Nowadays, however, and this was recently confirmed by the Court of Appeal (Dunn & anr v AAH Ltd), it is generally accepted that an employer can terminate an employee’s contract if misconduct is so serious that it undermines the “trust and confidence” which is at the heart of a contract of employment. Thirdly, you could always throw yourself on their mercy, but if they consider that you have breached their trust and confidence, a tribunal would probably find that dismissal is within the ‘band of reasonable responses’.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I am representing a member at a disciplinary hearing and the management are refusing to let us see witness statements taken during their investigations. Surely this is unfair.

A, As a general rule, copies of statements should be provided to the employee or their representative in advance of the disciplinary meeting, unless there are good reasons not to do so. Even if a witness requests anonymity it is usually possible to anonymise or redact a statement in the interests of fairness.

However, in the case of Hussain v Elonex plc [1999], the Court of Appeal held that there is no universal requirement of natural justice or general principle of law that an employee must be shown in all cases copies of witness statements obtained by an employer about that employee’s conduct. The key is whether the employer can show there has been a fair and reasonable investigation of the alleged misconduct before a decision is made about what disciplinary action to take.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I applied for a job and was turned down. I got the impression that they thought I was too old. Is this discriminatory?

A. Only if the employer cannot objectively justify having an age criterion. If you were turned down just because of your age you have a right to go to an employment tribunal even though you haven’t worked for the company.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I have worked for my company since I was sixteen, which makes me one of the longest serving employees, even though I am still only 23. I applied for promotion but the company said their minimum age for supervisors is 25. Can this be right?

A. No it can’t. Once again they would have to objectively justify the lower age limit, and it is unlikely that they would be able to justify what is clearly an arbitrary figure. They need to be challenged on this. You can use the grievance procedure, citing age discrimination. At your hearing you (or your rep) can ask your employer how they justify setting such a limit.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I have moved to a different part of the company where all my colleagues are much younger than me. They have started calling me granddad and I’m getting fed up with it. What can I do?

A. You could start by asking them not to. If they continue then it constitutes harassment. According to ACAS harassment includes behaviour that is “offensive, frightening or in any way distressing”. Such behaviour can include nicknames, teasing, or name calling. If they do not stop when asked then it is up to the employer to protect you from such behaviour and you are entitled to take out a grievance.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. My employer asked me to stay on after 65 as they needed my specialist skills, but the depot is closing in 6 months’ time and I am being made redundant. Can I still claim redundancy pay?

A. The new age discrimination laws remove the upper and lower age limits on statutory redundancy payments, so you should at least receive the statutory minimum. If the employer provides more generous redundancy terms then you would be entitled to that, either through your contract or your right not to be less favourably treated because of your age.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. My company has said that it is no longer giving long service awards as they go against the Age Discrimination Law. This seems a bit mean as I am just coming up to 25 years service.

A. This is an example of employers hiding behind legislation when it suits them. The Regulations say that it wouldn’t be discrimination to provide different levels of benefit if they are based on length of service where it ‘reasonably appears’ to the employer that a service requirement fulfils a business need. For example, to encourage loyalty, increase motivation, or reward the experience of some or all of their workers. No reasonable employer would argue against that, which is why so many have introduced long service award schemes in the past. Yours are just using the age discrimination regulations as an excuse to save money. Speak to your rep about starting a grievance.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I know the rules have changed regarding retirement age. Can you let me know the current position?

A. Since 6 April 2011 retirement is no longer a fair reason for dismissal. This means that any dismissal after that date for retirement will be unfair and age discriminatory (unless it can be objectively justified, which means that retirement would be a proportionate means to achieving a legitimate aim).

The ACAS handbook, ‘Working Without the Default Retirement Age’ suggests that employers may be able to introduce an ‘Employer Justified Retirement Age’ (‘EJRA’) but they will need to objectively justify it. They would have to establish that such a retirement age is a proportional means of achieving a legitimate aim. However, the ability to automatically retire employees at 65 or over no longer exists.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I have recently entered into a civil partnership, and I want to change my surname to that of my partner. My employer says I can only do this by deed-poll and that will be expensive.

A. They really are behind the times here. Government departments and agencies such as the Passport Agency and the DVLA will accept civil partnership certificates in the same way that they accept marriage certificates as evidence for changing names and your company should do the same.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I have been off on long term sick due to my disability (which the company accepts is covered by the Equality Act) and now my sick pay has stopped. If I’m disabled shouldn’t it continue?

A. The Court of Appeal has upheld the decision of the EAT that an employer continuing to pay sick pay beyond their normal period would not be a ‘reasonable’ adjustment. As non-disabled people also have their pay stopped after a certain time this is not less favourable treatment.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I am regarded as disabled under the Equality Act and I have been off for 13 of the last 18 months because of my condition. Now my company has said that they are going to dismiss me because of my attendance. I thought that if I was disabled they couldn’t do that.

A. An employer is required to make ‘reasonable’ adjustments and treat you no less favourably because of your disability, but Lord Justice Sedley (O’Hanlon v The Commissioners for HM Revenue & Customs) has recently pointed out that someone absent for a long period due to chronic illness, whether or not it amounted to a disability, could still find that at common law the contract had been frustrated by illness and the consequent dismissal of the employee held to be fair. You need to get your rep to discuss reasonable adjustments with your employer, but if they can’t make any then your contract can be terminated.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I work doing data input but I have developed an incurable back problem that means I can’t sit in one position for any length of time. My manager has now said there is no alternative work for me so they will have to terminate my contract. I mentioned that I had seen a “Meet & Greet” job that would be ideal, as its mainly standing up but he said no as it pays more than my job so would be promotion and therefore he couldn’t give it to me.

A. I wonder if HR are aware of this manager’s actions? Firstly, the courts have said that a move to a job that you are capable of doing, even if it involves a promotion, is a reasonable adjustment and secondly, the EAT (Fareham College Corporation v Walters) has decided that a dismissal in these circumstances, where a reasonable adjustment would have avoided dismissal, will be an unlawful act of disability discrimination. Once again, submit a grievance for failure to make reasonable adjustments as required by the Equality Act 2010.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I am pretty sure I am being paid less than my male colleagues and my rep and I are trying to put together an equal pay claim, but there is a clause in my contract that says we can’t discuss our salaries with other employees. My male colleagues have said that if it weren’t for that they would help me. Is there anything I can do?

A. Despite the Equal Pay Act, which believe it or not dates back to 1970 (try to see the film “Made in Dagenham” about the strike that pushed the government into doing something about equal pay), there is still a 16.4% pay gap nationally between men and women. In the City men receive five times more bonuses than women, on top of an average 39% pay gap. No wonder employers don’t like you discussing pay. Don’t worry though, the Equality Act renders null and void any gagging clause in a contract that tries to prevent you discussing pay levels with fellow employees provided you are doing it in relation to an equal pay claim.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. We are expected to wear a uniform to work. I am undergoing gender reassignment and have asked for a woman’s uniform but the company is saying that as I’ve only just been issued with a man’s I must pay for a new one. Surely if they want me to wear a uniform they should provide it.

A. You would think so wouldn’t you? However, an employer does not have to provide the uniform even though you are required to wear it. Yours is a special case, though, and as you are normally provided with a free uniform I think you have a case for discrimination on grounds of your gender reassignment. Get your rep to speak to your HR department and if that doesn’t help take out a grievance.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I have just applied for a job where I have had to fill out a health questionnaire. I have had health problems in the past year and I am fully recovered now, but I am worried that when they see how much time I had off they might turn me down without giving me an interview.

A. Since the Equality Act came into force employers cannot ask health questions until they have decided to appoint you. This means they must select you for appointment on the basis of your application form and your satisfactory interview for the job. After the job offer stage, an employer can ask you questions about your health, but that should be in order to consider whether any specific adaptations will be necessary. However, if an individual finds that his or her job offer is withdrawn after such a disclosure, he or she may have a claim and the employer will have to prove that this was not due to discrimination (rather than the other way round).
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. My company has a policy that we only get paid for overtime after we have worked five hours extra. I work part time but I still have to do the five hours same as full timers before I get paid any extra. I think this is discriminatory as I have to work proportionately more hours before I get paid for them.

A. I think it’s discriminatory too, but more importantly so does the European Court. In VoB v Land Berlin C-300/06 the ECJ held that a rule requiring employees to work more than so many hours overtime a month in order to qualify for overtime pay was detrimental to part-time workers and may be contrary to Article 141 of the EC Treaty (concerning the principle of equal pay for men and women for equal work and work of equal value). This is a bit of a tricky one, but you could get your reps to suggest to the company that it might be in their best interests to discuss some different arrangement to ensure fair treatment. But (there always is one) don’t confuse this with the requirement that part-time workers work the full-time equivalent before getting an enhanced overtime rate, eg workers on 20 hours having to work 40 hours before getting time and a half. This is quite usual and is covered by the Part-time Workers Regulations. It is also referred to in the ECJ case of Stadt Lenerick v Helmig [1995].
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I was following my boss’s laid down procedures when dealing with our major customer, which meant the customer did not get what they wanted, and there was a silly argument. Now they have said that if I’m not sacked they will take their custom elsewhere and my manager has given me notice. Is this fair? I didn’t start the argument.

A. This may not seem fair, but it comes under ‘Some Other Substantial Reason’, (SOSR) which is a fair reason for dismissal. If the employer can show that there would be a major detriment to the business, in this case by a major customer going elsewhere, then an Employment Tribunal may very well decide that this was a fair dismissal under SOSR. The employer would have to follow their Disciplinary Procedures, and should certainly have explained to the customer that you were following instructions and have asked them to change their mind.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. The company is saying that a small sum of money is missing from the office charity box, and they say only I and a colleague had the opportunity to take it. They are also saying that as they can’t prove which one of us took it they will sack us both. I didn’t take the money so will I have a claim for unfair dismissal?

A. So long as the employer has acted reasonably, and following proper investigation has narrowed to ‘a point of certainty’ that it was one of two employees, but can’t prove which one is guilty, then it may be fair to dismiss them both.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I represented a member at a Stage 1 disciplinary hearing, but we lost (it was a pretty hopeless case) and the member was dismissed. However, the letter inviting her to the hearing did not say that one of the possible outcomes was dismissal. Would that be sufficient grounds for appeal?

A. Not according to the Employment Appeal Tribunal. In Homeserve v Dixon [2007] the EAT overturned an Employment Tribunal decision that the dismissal was automatically unfair, as the letter did not state that the employer was contemplating dismissal. They said that it was sufficient that the employee was invited to a formal disciplinary meeting, as, even through it only alleged ‘breach of contractual obligations, namely conducting private business using company property’, that was sufficient to imply that the employer was ‘contemplating dismissal or some other disciplinary action’.

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I have had my contract terminated, as I have been sick for 18 months. Surely as I was off for reasons of my disability this is unfair?

A. The House of Lords clarified the approach taken in disability discrimination cases, specifically the phrase “a person discriminates against a disabled person if – (a) for a reason which relates to the disabled person’s disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply”.

Their decision includes the following:

‘a reason which relates to the disabled person’s disability’ has to be construed narrowly. So, for example, if an employer dismisses somebody for being off work sick for a year, then the reason is the absence from work and not one that relates to the underlying disability itself – which means the employer will not be liable under the Act

So in your particular case (and possibly many others from now on) as the reason for termination was not the cause of the absence but the length of absence, then you have not been discriminated against.

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I was advised by the Helpdesk that I had grounds for a grievance and to submit it straight away in writing. My email wasn’t working so I sent it to my boss by text message. Now he is refusing to accept it as it is not “in writing”.

A. The legislation basically states that all an employee has to do is set their grievance out in writing. As a result, a grievance can be raised in a letter, an email or even a text message. The advantage of a text message, as with an email, is that you normally have a record of the date/time sent and a copy, but you must be careful what you put in it esp f ur txt aint clr. You would have been better to follow it up with an email or letter but your boss should accept it.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I submitted my grievance three weeks ago but they have just ignored it. Now what do I do?

A. The ACAS Code of Practice says grievances must be dealt with without ‘unreasonable delay’, though it doesn’t specify what is ‘unreasonable’. Write to your manager’s manager stating that you consider that your grievance has not been dealt with in a reasonable time, and you now wish to take it straight to the next stage of the grievance procedure. It should then be dealt with by a more senior manager, as you will have effectively gone straight to the appeal stage. Don’t forget you are entitled to a rep at every stage of the grievance procedure.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I phoned the Helpdesk and explained that my pay always seems to be wrong, and was advised to raise a grievance. I have thought about it and decided this is the best way forward but how do I go about it?

A. All you need to do is write to your line manager (or if your grievance is about your line manager send it to their manager) stating you wish to raise a grievance. You should briefly outline your reason, though it is not necessary to go into detail – one or two bullet points should do. The company must then offer you a personal hearing at which you are entitled to bring a union rep (even if the company says it doesn’t recognise unions!).
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. Over the last few months my wages have been less than expected. I work overtime at three different rates of pay and because my pay slip doesn’t show much detail I find it difficult to work out if it is right. Should I take out a grievance to get my employer to put more detail in it?

A. All your employer is required to show on a payslip is your gross wages, any deductions (except in certain circumstances these are listed individually) and your net wages. Raising a grievance about inaccurate pay, rather than the pay slip itself, would let you and your rep discuss the problems with your boss and maybe you could work out a solution to benefit you both.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I was just about to submit a grievance but I understand I could go straight to an Employment Tribunal. What do I do next?

A. You submit a grievance. The ACAS approved Code of Practice says you should exhaust the internal procedures first. This in itself is not legally binding but a tribunal can take into account whether it has been followed, either by you or your employer. If it isn’t they can reduce/increase any award by up to 25% to punish whoever didn’t follow the guidelines. Your best bet is to carry on as before and try to resolve your grievance internally.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I hurt my back at work lifting a box of paper to put in the photocopier. I didn’t take time off but I can’t sit for any length of time and have to keep moving about. My boss has said I can work in a different department for a while. I wanted to enter it into the accident book but they said as I didn’t take time off it wasn’t necessary.

A. They are having you on. Every incident involving injury at work should be put in the accident book. This is not only for your own benefit, in that if your back problems get worse you will need to show when and where it happened, as you may have a claim against the company (see the Heavy Lifting answer later). Under the Reporting of Injuries, Diseases & Dangerous Occurrences Regulations (RIDDOR) the company is required to report any accident that involves losing three or more days at work, or prevents you from doing your usual job for more than three days (even if you don’t take more than three days off). Speak to your Health & Safety Rep they can make sure the incident is recorded, or complain to the HSE if the company still refuse.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. We have just started using new ticket machines that have modern computer screens. I have heard I can request an eye test. Is that right?

A. Regulation 5 of the Management of Health & Safety at Work Regulations 1992 states that the employer must provide (at their expense and with paid time off) eye sight tests for those employees who will become Display Screen users. Where “special corrective appliances” are required, the employer must also pay for those. This means, for example, that even if you already wear glasses, and an optician decides you need special ones to use your Display Screen, the company must provide them.

It is important to note that you must request an eyesight test, the employer does not have to offer it.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. We asked permission to put up Christmas lights but were refused on health and safety grounds, as they were an appliance and had to be tested. We were going to club together and by new ones.

A. Well bah humbug! This was one of the Health & Safety Executive’s ‘myth of the month’. According to them all the law requires is for employers to assess risks and take appropriate action. HSE’s advice is that for most office electrical equipment, visual checks for obvious signs of damage are quite sufficient. So long as nobody can trip over the wire simple common sense should prevail. Tell your boss even Scrooge cheered up in the end.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. We had a fire alert last week and although it was a false alarm I found it very worrying. Nobody knew what to do or where to go and people were milling about in the doorway because they were told it was a false alarm while others were coming downstairs still trying to get out. Shouldn’t we have regular fire drills?

A. You certainly should. Article 15 of the Regulatory Reform (Fire Safety) Order 2005 (applies to England and Wales, Part 3 of the Fire (Scotland) Act applies in Scotland ) says that your employer (as they control the building) must “establish appropriate procedures, including safety drills, to be followed in the event of serious and imminent danger” and “nominate sufficient competent persons to implement evacuation”. The minimum frequency is one per year, but an employer must also provide all employees with instruction and training so that they know what to do in the event of a fire.

Everyone must know how to raise the alarm if they discover a fire, how to contact the fire brigade, how to use the fire-fighting equipment, how and where to evacuate the building and where to assemble and who to report to. If your employer does not have fire drills and provide proper fire training they are breaking the law. Once again you need your Health and Safety rep to press management to get their act together.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. We have just had a supply of brochures delivered and our manager is insisting we carry them upstairs to the store room but they are in very heavy boxes. Can we refuse?

A. According to the Health and Safety Executive, more than a third of all serious accidents at work are caused by manual handling. The first rule of manual handling, according to the Manual Handling Operations Regulations 1992 is: don’t do it. Regulation 4(1)(a) says as far as reasonable practicable manual handling must be avoided. Where that is not possible the company must do a proper risk assessment that takes into account the task, the load, the working environment and the individual capability.

They should also provide proper training in manual handling and, where necessary, correct equipment. If the boxes must be taken upstairs then a proper risk assessment may be able to reduce any dangers to your health, but until then you should be fully within your rights to refuse.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I am a health and safety rep. Two of the members I represent are going through the menopause and they are finding it very difficult to wear the full uniform, as required, because of their symptoms (chiefly hot flushes). Management are refusing to make allowances by letting them take their jackets off. Can I do anything to make them see sense?

A. Are all your managers young or single men? Most women experience the menopause between the ages of 48 and 55 (sometimes younger) and it is estimated that 70% of women between the ages of 45-59 are working so this issue is going to affect an awful lot of people. This is not an illness or disability, but it can have strong mental and physiological effects, including ‘hot flushes’, sweating, fatigue, stress, anxiety and possible short-term memory problems.

The first thing to do is insist that the company does a risk assessment. This will force them to address what may well have been a hidden problem up to now and remind them that they have the same duty of care over this as over the other health matters. It may also encourage your health and safety committee to develop sensible policies to address any problems that affected women may have. Check out the TUC’s helpful document “Working through the change” at www.tuc.org.uk/h_and_s/tuc-6316-f0.pdf.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. We are moving into a new office and it feels really cramped. Is there a minimum amount of space we should have?

A. Regulation 10 of the Workplace (Health, Safety and Welfare) Regulations 1992 says you should have ‘sufficient floor area, height and unoccupied space for the purposes of health, safety and welfare’. There should be at least 11 cubic metres for each person based there. Eleven cubic metres is a minimum and may be insufficient if there is a lot of furniture or other equipment. When measuring you should disregard any height over 3 metres. You could also bring to your employer’s attention Regulation 4A of the Safety Representatives and Safety Committees Regulations 1977 which says that TU Health and Safety Reps should be consulted ‘in good time’ about changes that may affect employees, including design and layout.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I work in a call centre but I am employed by an agency. I am trying to get a risk assessment of my workstation but the agency say it is nothing to do with them, I should approach the call centre management.

A. The company that you are placed with is generally responsible for making sure that the workplace is a healthy and safe working environment for you, but since 6 April 2004, agencies now have a duty to check that the hirer has carried out a thorough health and safety risk assessment and make sure that you are made aware of the situation before placing you with the organisation.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. The heating in my workplace is unreliable and now the winter is drawing on we are starting to have real problems with the cold. What is the minimum temperature and what do we do when it drops below that?

A. Some questions seem to come round every year. Regulation 7 of the Workplace (Health, Safety and Welfare) Regulations 1992 says that a “reasonable” temperature must be maintained during working hours. This may depend upon the nature of the work, but in an office/shop environment this is a minimum of 16oC. The company must also provide thermometers. If the temperature falls below this then there are certain actions you could take. Firstly, you and your colleagues should submit a grievance over your working conditions. You should insist on taking time out to go somewhere to get warm and on taking time to make drinks (this in itself may be disruptive enough to encourage the company to do something). Although if you refuse outright to work you may be in breach of contract, you could also insist on a temporary transfer to somewhere more comfortable. Make sure you get your H&S rep involved. If the company offers temporary heating don’t forget that this may itself become a hazard (training wires, etc) which may need to be assessed.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. During the recent hot spell it was 35o in our office. What is the maximum permitted temperature?

A. Whilst there is a legal minimum temperature in shops & offices of 16o there is no maximum. However, the employer has a duty to provide a healthy working environment and so they should, where possible, provide portable air conditioning, cooling fans and window blinds. They should also provide cold drinks, extra breaks, etc. and relax any dress code. Any complaint of ill health caused by the excessive heat should be entered into the accident book.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I realised I had four days leave left at the end of the year and I applied on 22 December to take them from 28 to 31 December. My boss refused to grant them and now she says I have forfeited them and is refusing to pay in lieu or let me carry them forward. I thought they had to let me take my statutory leave.

A. Firstly, the Working Time Regulations give every full time worker (pro-rata for part time) 28 days (5.6 weeks) statutory leave, though your contract can give you more. Statutory leave can include Bank Holidays. It is up to the employer when you take them, though policies such as how you apply for leave and any restricted periods should be clearly stated in your company handbook.

The Regulations say that you cannot carry statutory leave into the next leave year (unless you have been off sick and unable to take it), or be paid for any leave you haven’t taken (except when leaving the company). This is to ensure that you get your proper rest within the year, which is the primary (health and safety) reason for the Working Time Directive. The situation is different for any additional contractual leave. Whether that is carried over or paid in lieu depends on your contract or any collective agreements.

Regulation 15 states that if you apply for leave you have to give twice as many days notice as the number of days you wish to take. This is where you got caught, as to be guaranteed your four days’ leave you would have had to apply at least eight days before the first day of the leave you requested i.e. 20 December. It may seem odd that the Regulations insist that you take your leave but if you apply too late you can lose it. However, a very recent decision in the Employment Appeal Tribunal (EAT), said that as the right to statutory leave has been made subject to the notice provisions in Reg. 15, it is possible in circumstances such as yours to lose leave at the end of the year.

A similar requirement for notice occurs where an employer instructs a worker to take leave. Two recent Helpdesk cases come to mind. Firstly, where the boss says something like ‘the shop is flooded, take a day’s leave tomorrow’. This would be inadequate notice and so they can’t insist you take it. Secondly, where people are redundant and working their notice and they are told to use up their outstanding leave during their notice period. Here again, unless they are given the proper notice they don’t have to take it, and can insist on being paid in lieu.

One more point before you nod off. If your employer wants to cancel or refuse your leave they have to give the same number of days notice as the number of days cancelled. So if you apply in the normal way for 10 days leave and give the proper 20 days notice, they cannot refuse it less than 10 days before it is due to start.

All the above relates to basic statutory leave under the Working Time Regulations and most of our members enjoy better rights that we have negotiated over the years (another benefit of the TSSA membership) so check with your rep regarding national and local agreements about taking leave.

For our members in the Irish Republic (we haven’t forgotten you) please note the rules differ slightly from those in the UK. You have a right to four weeks statutory holiday and unlike the UK, most Irish workers have a right to time off on a Public Holiday. Although it is still up to the employer when you take your holidays, they must take into account your family responsibilities, opportunities for rest and recreation that are available to you and consult with you (or your union) at least one month before the leave is to be taken. In addition, annual leave should be taken within the appropriate leave year or (with your consent), within 6 months of the relevant leave year. Further carrying-over of annual leave at your wish is a matter for agreement between you and your employer.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. My company has said we will have to work on 2 January, which is a bank holiday here in Scotland. They have also said we won’t be paid any extra for doing it. Shouldn’t we get enhanced pay for a bank holiday – we always used to?

A. As you will already know if you are a regular reader there is no right to time off on a bank holiday, and to really rub it in, if you work on a bank or public holiday there is no automatic right to an enhanced pay rate. It all depends on your contract of employment. Unless that specifically states that you will get extra then you should only get the normal rate. However, if you always got double time in the past for working bank holidays, even though your contract didn’t say you would, then we can argue that your contract has changed through ‘custom and practice’ and stopping enhanced payment now would be a breach of contract. Speak to your rep about submitting a grievance.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I have been asked to work the next bank holiday, but my boss won’t pay me any extra for it. Shouldn’t I get enhanced pay?

A. Only if it’s in your contract, otherwise there is no entitlement to extra pay for working bank/public holidays. If your contract says you get bank holidays off then you will be entitled to time off in lieu.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I have worked at a small travel agency for the last four years. Until recently, we always closed on bank holidays and had paid leave. Now the owner has said that there is no right to bank holidays and so in future he will change the roster so that we have our (unpaid) days off when the shop is closed on a bank holiday. Can he do this?

A. He is correct, there is no right to paid time off on a bank holiday. However, he can’t just stop paying you, as there is such a thing as an implied term in your contract put there by custom and practice. Because he always paid you in the past this has become part of your contract, so to stop paying you now would be a breach of it. Tell him you regard this as an unlawful deduction of wages and you will be seeking union support. You should also check your contract to see if he can change your days off without your agreement. If it doesn’t say he can and you haven’t agreed to it in the past (thereby allowing custom and practice in his favour) then changing your days off will require your agreement.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I have been told by my boss that from now on I have to work on bank holidays. I thought everybody was entitled to a day off on a bank holiday.

A. Only bank workers themselves are entitled to bank holidays. For all other workers there is no automatic right to take bank or public holidays as paid or unpaid leave. Any right to do so depends on the terms of your contract. There may be express terms giving you a right to time off on some or all bank and public holidays, or there may be terms implied by custom and practice. Another point worth noting is that although the Working Time regulations give you a statutory right to 28 days holiday a year, unless agreed otherwise paid time off on a bank or public holiday will count towards the 28 days, so you may find that up to 8 days’ leave is swallowed up by bank or public holidays.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I had to take the day off because my child was ill. My boss says I have to take it as annual leave but I have booked all my leave for a trip abroad and I have none left.

A. Your boss cannot force you to use up your annual leave in this way. The Employment Rights Act 1996 entitles all employees to reasonable time off to deal with family emergencies involving children, spouses, parents, partners or anyone who looks to the employee for assistance. Emergencies are defined as sickness, accident criminal injury, death, funerals, absence of the carer or serious problems at a child’s school. Although this entitlement is to unpaid leave, some companies do pay in such circumstances.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. Recently the road at the end of my street was three feet deep in floodwater and I couldn’t get to work. My employer has said that I either treat the day off as annual leave or as unpaid leave. As it wasn’t my fault shouldn’t I be paid?

A. I don’t suppose it was anybody’s fault, but there is no law to cover the rare situation whereby the employee is willing to attend work but physically can’t make it. Payment depends on what’s in your contract. If your contract doesn’t cover this situation but payment has been made in the past for similar occurrences and everybody would normally expect to be paid in such circumstances you may have a claim under ‘custom & practice’ (but don’t hold your breath).
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. My employer says that as from next year we must take annual leave between Christmas and New Year. Surely they can’t force us?

A. Yes they can. Under the Working Time Regulations, the employer can require staff to take holiday at certain times, such as bank holidays or plant shutdowns. You would be expected to ensure that you set aside leave for those days.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. We have just been told that our shop is being refurbished next week and the boss has said that I must take the week off as part of my annual leave. Can she do this?

A. All workers are entitled to at least 28 days leave including Bank holidays (pro-rata for part-time workers), but management can insist that you take your leave at certain times, such as during shop closures. However, under the Working Time Regulations, if an employer wants workers to take leave they must give sufficient notice, which is defined as twice the number of days leave to be taken. As they want you to take five days leave, they must give you at least ten days notice, so in this case she cannot force you to take leave. Employees should give a similar period of notice when requesting leave (although it does not have to be granted).
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I have resigned from my current job giving one-month contractual notice. The company is now saying that as I have taken all my annual leave and we’re only half way through the leave year I have to pay them back for the extra leave taken.

A. You need to check your contract and company handbook. Regulation 14(4) of the Working Time Regulations 1998 states that an employer and a worker can draw up a ‘relevant agreement’ (e.g. in the contract of employment) to provide that a worker will compensate the employer if they have taken more leave than they were entitled to when their employment ends.

If there is such a clause in your contract you will have to pay the company but if there is no ‘relevant agreement’ in place, and your employer deducts the ‘overpayment’ from your final salary, you may have the right to go to an Employment Tribunal with a claim for unauthorised deductions.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I work part time (Tuesday, Wednesdays and Thursdays) and the company says that as I don’t work bank holidays I am not entitled to any time off pro rata.

A. If full time staff get time off on bank holidays you should get it pro rata. Since 2009 all part timers have been entitled to a minimum of 28 days pro rata.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I understand that the government has introduced extra paternity leave. As my wife is now expecting our first child can you explain how it works?

A. You’re right – thanks to the last Labour Government. Where the expected week of childbirth is on or after 03 April 2011 fathers can take up to six months off to take over from the mother if she wants to go back to work. Basically, if you qualify, the Additional Paternity Leave Regulations 2010 specify that additional paternity leave will be for a maximum of 26 weeks and minimum of two weeks, that it must not start until at least 20 weeks after the birth and must end not later than 12 months after the birth, and that it may only be taken in multiples of complete weeks. There are downsides though. One is that you will be entitled to the equivalent of maternity pay but only within the 39 weeks that your wife would have had then its unpaid for the rest of the time.

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. My partner has just had a baby and I want to take next Thursday and Friday off and then the following Thursday and Friday as Paternity Leave. My boss says that’s OK but HR say I can only take either one or two full weeks. Who’s right?

A. Human Resources have got this one right. Provided you are an employee with more than 26 weeks service and you notified them before the 15th week prior to the expected date of childbirth that you would be taking the leave, you are entitled to two weeks paid paternity leave at £128.73 (from April 2011) per week (or 90% of earnings if you earn less than this). However, paternity leave must be taken in a single period of one or two weeks. It cannot be taken as separate days or in more than one period. It is worth noting that while the foregoing is the statutory minimum, in many companies the TSSA has been able to negotiate a better deal for our members.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I saw your piece in the last journal about paternity leave. My partner is due to give birth soon and I would like time off to be with her but my boss says as I’m a woman I’m not entitled.

A. Your boss is wrong on this one. The same sex partner of someone taking maternity or adoption leave is entitled to statutory paid paternity leave, providing they fulfil the normal qualifying rules. These are that they must have been employed for at least 26 weeks by the 15th week before the baby is due and earning at least £102 per week. You must give your employer notice, at least 15 weeks before the expected week of the baby’s birth and you must take it in a block of either one or two weeks within 8 weeks.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I have seen that women on Ordinary and Additional Maternity Leave will be able to keep their company car during their whole period of leave. I don’t get a car provided but they give me a weekly car allowance. Now my employer says I won’t be entitled to it while I am on my maternity leave.

A. They are right. Employers don’t need to continue to provide contractual cash benefits during OML or AML. These cash benefits include such things as housing allowance, car allowance or vouchers which have a transferable cash value, such as luncheon vouchers. However non-cash benefits such as childcare vouchers which can only be used by the employee and are not transferable must continue to be provided during OML and AML.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I have just found out I’m pregnant and when I told my boss she said according to my contract I would have to hand back my company car while I was off. I was relying on that as I won’t have access to my partner’s during the day when I need it. Can I do anything?

A. Since October 2008 you have had a statutory right to keep your fringe benefits (including their company car) while you are on maternity leave.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I read about the 10 Keeping in Touch days in the journal and I have agreed to do it but my boss said that there are some big changes coming up and he would like me to do two extra days. Will this be OK?

A. Not if you want to keep your statutory maternity pay it won’t. You are only allowed to work 10 KIT days without affecting your SMP. You can either refuse or get him to reschedule your other days if you feel you want to go in.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I went into work on one of my keeping in touch days and found out that my supervisor had left and her job has been advertised. I would have applied had I known about it. Is there anything I can do?

A. I would start by submitting a grievance. Your employer has a duty to keep you informed about all such matters while you are off. In fact, according to the EAT, a failure to do so will amount to a breach of trust and confidence. Make sure your employer knows you will attend your grievance hearing even though you are on maternity leave and contact your local rep straight away.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I normally work nights, but now I am pregnant and my doctor says this is not good for my health. My employer has agreed to let me work days but says that as the only job is in a lower grade I have to reduce my wages.

A. The Management of Health & Safety Regulations say that where you have a certificate from your doctor (or midwife) showing that it is necessary for your health and safety for you not to work nights they must offer suitable alternative daytime work on the same terms and conditions for the length of the certificate. If they can’t provide suitable work they should suspend you on full pay for the same period.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I am hoping to start a family soon but I am worried about some aspects of my job. I am an engineer and I have asked my boss to do a risk assessment but he says I have to wait until I’m pregnant. I worry that it may then be too late.

A. Under the Health and Safety Regulations your employer is required to conduct a risk assessment for all his employees. Part of that risk assessment should include any risks to new and expectant mothers and also any specific risks to females of childbearing age who could become pregnant. If any risks are identified your employer must inform you and your colleagues directly or through your safety representative. This should include involvement in what is being proposed to reduce, remove or control the risks.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. My baby was stillborn and my company says I can take some time off but I should take it as annual leave. This seems very harsh.

A. Not only harsh but wrong. If your baby died before the 25th week of pregnancy that is counted as a miscarriage and you should take time off under your normal sick pay arrangements. After the 25th week you will be given a certificate of stillbirth by the hospital and you will be entitled to exactly the same leave, pay and protection from discrimination as if your baby had been born alive.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. Do I have to tell my employer that I am pregnant? There are some new jobs coming up and I worry it may affect my chances of getting one.

A. You don’t have to inform your employer that you are pregnant (though they might guess after a while), but it is very important (for the health of both you and your baby) to let them know as soon as possible. Until they have received written notification from you they are not obliged to take any action other than those resulting from the risk assessment for all their employees. You could also damage your rights over time off for ante-natal clinics, pregnancy related illness, etc. As for promotion, if you are clearly the best candidate for the job and your don’t get it they will have a hard time defeating your claim for sex discrimination.

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. There is a lot of information coming from the union about our latest reorganisation and I don’t seem to be getting any of the info, though my colleagues are.

A. I have checked your details on the membership system and the problem seems to be that though you told us you’d changed your address you haven’t told us you’ve changed jobs. The membership program can be set up to send circulars out to employees in particular companies and to certain sections within those companies. If you don’t tell us you are now in a particular job/section you’ll be missed out.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I complained to my employer that I was being paid less than the minimum wage but he said that my £2.50 a day in Luncheon Vouchers took me over the minimum. Can he get away with this?

A. Certainly not. No benefit in kind (except accommodation, which has special rules) can be counted towards NMW pay.

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I am being made redundant and I have been offered alternative employment. The company says there will be no redundancies but I don’t think the job they have offered me is suitable. Do I have to take it?

A. The Employment Rights Act 1996 says that alternative work must be the same as, or not substantially different from, the previous work. Work would normally be considered unsuitable if it involved changes to pay, travelling time, skill requirements or status, but suitability may also depend upon subjective factors personal to the employee. An Employment Tribunal would take your individual circumstances into account. If you refuse an offer of suitable alternative work you would be regarded as having resigned and you would lose any right to redundancy pay.

You should also note that you are entitled to a four week trial in the new job. If before the end of that time you find it unsuitable you would be able to claim that you are redundant and still qualify for redundancy pay.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. The company has told me that I am redundant and that I am only entitled to statutory redundancy pay. They have given me a compromise agreement to sign. What’s my next step?

A. Your next step is to wonder why they’ve offered you a compromise agreement if you are genuinely redundant. A compromise agreement is used to sign away all your legal rights to take them to an employment tribunal and would be expected in cases where your dismissal is not necessarily fair but they want to pay you off anyway. If your redundancy is genuine they don’t need it and if it isn’t you want a lot more than the statutory amount before you sign it. Tell them you’ll only sign it if they make you a much better offer. On the general theme of compromise agreements, they are only valid if countersigned by a person qualified to explain to you exactly what it means in respect of you signing away your legal rights. This is usually a solicitor. The employer would be expected to pay the legal fees for this and it is always advisable to get it in writing that they will. While you can use any solicitor we would recommend you use those with experience in employment law, such as TSSA’s own solicitors, Morrish & Co.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I was displaced and the company offered me a different job. I rang the Helpdesk and you told me I was entitled to a four week trial in my new job and if it wasn’t suitable I could still take redundancy. I took your advice but after one week in the job I was sick and had three weeks off. Now the company says that my trial period is up and I can no longer claim redundancy, eve though I only did one week.

A. The company is right for once. Once you start your trial period intervening breaks for sickness or holidays or any other reason do not extend it.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I worked for British Rail before being transferred to a new Train Operating Company when we were privatised. Three years ago I left for a better job with a different TOC. Now they are making me redundant but they say I only get three years redundancy pay. I have 25 years on the railway, why are they only offering 3 years? I still have my travel facilities from my BR days.

A. Your transfer from BR was under the TUPE regulations, which meant you didn’t have a choice over the move and because of that you kept all your current terms and conditions, as well as your continuous service. When you moved subsequently to the new job it was your choice. You resigned from your old one and so you joined the new company as a new entrant and your service started again. That is why it only goes back three years.

Your travel is a different issue. Because you worked for BR at the time of privatisation you are “safeguarded” and so, as you transferred to another railway company without working for a non-railway company in between, you kept your BR travel facilities, even though you lost your continuity of service.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I have been made redundant and I am working my six weeks notice period clearing up some outstanding admin work. My boss has said I only need to come in half time and they will reduce my pay accordingly. This doesn’t seem right.

A. That because it isn’t. You say there is no clause in your contract that allows them to change your hours therefore they have to pay your full wages, even if they tell you to work part time. Insist on being paid in full, otherwise you can take your case to a tribunal.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I’m redundant at the end of the month and I am not sure what to do with my redundancy pay. Are you able to offer any advice?

A. Only companies, organisations or individuals who are licensed by the Financial Services Authority are allowed to give individual advice on financial matters. We could give general advice, like don’t put it all on the same horse, but you would be better speaking to an Independent Financial Advisor, as they would be liable for any wrong or inappropriate advice.

We are unable to recommend individual IFAs either but you can look for one online at: http://www.unbiased.co.uk/
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. My employer is a small travel company. The boss has said there may need to be redundancies but if we all take a temporary pay cut the company might be able to keep all our jobs.

A. A lot of firms seem to be doing this at the moment but you need to think carefully about it. Firstly, they can’t reduce your pay without your written agreement. If they do you can go to a tribunal and claim unlawful deduction. Have they asked for volunteers? There may be some who would like to leave. Otherwise you need to get it clearly in writing what is meant by temporary, whether future redundancy payments, percentage pay rises etc.will be based on your original salary.

You could also negotiate extra leave as compensation. And don’t forget to ask how big a pay your boss and the rest of the Board are taking.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. Our company is proposing to make 25 of us redundant and they say they are going to use our attendance records as the criterion for selection. Are they able to do this?

A. Companies can legitimately use attendance records as a fair reason for selection, provided they take reasonable steps to allow for absences such as maternity leave, parental leave or disability, otherwise they may be looking at claims for discrimination on grounds such as disability, gender or family status.

In this case, however, as they are making more than 20 staff redundant they have a statutory duty to consult with the union for a minimum of 30 days, so the reps should be looking at getting them to consider other selection criteria such as relevant experience, qualifications and training rather than the blunt instrument of attendance.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I have been off sick for a while and with redundancies looming I am worried they might use that as a reason to get rid of me.

A. Let’s be quite clear, sickness, even with a doctor’s note, can be a fair reason for dismissal. In your case, however, while the company could use sickness as part of the selection process they would have to show that they had acted fairly. As you had an accident from which you will make a full recovery that’s not the same as somebody who is off every other Monday and every meeting at York races. They may be able to use other criteria against you but we would argue that just to use your current period of sickness would be unfair.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. My company is seeking volunteers for redundancy. If I volunteer will it make a difference if I need to sign on? I am worried that I will be regarded as somehow making myself jobless.

A. Don’t worry – there is no difference between voluntary and compulsory redundancy. You are still redundant. You should sign on as unemployed to get your National Insurance contributions credited, though if you get a big pay-off you may not be eligible for any benefit payments. Speak to your local benefit office or check out the government website at: http://www.direct.gov.uk
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I have been off sick for nearly three months now and my company want my permission to get my medical records from my doctor. I have refused but they say it is in my contract that I have to give permission. I checked my contract and it did say that but there is a previous illness I really don’t want them to know about.

A. There’s nothing to worry about. They can’t enforce such a clause in your contract, the Data Protection Act 1998 makes it null and void (and I bet they know it). Bear in mind, though, that if you do refuse a company can “draw its own conclusions”, so you could give permission for your doctor to discuss your current condition but nothing else. You should also ensure that any report goes directly to their Occupational Health Service, not to your manager or human resources department. The company can then be guided by the OHS report and your confidentiality should be preserved. Don’t forget also that you have a right to see the OHS report before it is sent and though you can’t amend it you are allowed to add your own comments.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I have been off sick and the company wants a report from my GP. I don’t mind that, but I’d like to know what it says. Can I insist on seeing it and can I object if I think it’s wrong?

A. Under the Access to Medical Reports Act 1988 you have a right to see the report and a right to request amendments. You should tell the employer that you wish to use these rights. They must inform you when the report has been requested. You then have 21 days in which to contact your GP to arrange to see it otherwise you will lose your rights. You should also tell the company and your GP that the report should only contain information on your current condition/illness.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I have been off sick for a month and the company has asked me to sign a form for my doctor to allow her to write a report about my condition. Do I have to allow it?

A. No, you are within your rights to refuse and the Information Commissioner’s Code of Practice says, “If consent is to be relied on, it must be freely given. That means a worker must be able to say ‘no’ without penalty and must be able to withdraw consent once given”. However the courts have said the company is within its rights to make any decisions on the information available, so it may be counter productive not to provide the full facts. Don’t forget any report is covered by the data protection act and access must be limited only to those with a genuine requirement to see it. The company should also leave the interpretation of medical information to those who are qualified to do so.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. The company has said that I have to go to see their own doctor, which will mean at least an hour each way on the train. I am still poorly and don’t feel up to leaving the house at the moment. Can I refuse?

A. Most companies make it part of your contract that you attend a company appointed doctor when requested, so you should check your contract. Even if not an express term it will most likely be implied, so you would have to attend. However, the company must act reasonable and so they should schedule your visit to when you feel more able to go and if possible move it nearer to your home. They should also consider paying for somebody to accompany you if you don’t feel able to go on your own.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. My doctor has signed me off for another eight weeks but the company doctor says I can return on light duties for 5-hours a day for the next eight weeks and my manager has told me to report on Monday. Do I have to go back to work?

A. In Heathrow Express Operating Company Ltd v Jenkins 2006 the EAT offered guidance on how employers should deal with conflicting medical evidence. This was a disability discrimination case but the general principles apply. Basically the EAT said that the company was entitled to give weight to their doctor, bearing in mind his status as an occupational health physician and to prefer his advice, “as long as they did not act irrationally or perversely in favouring his opinion over those given by other medical professionals”. This case reinforces the point that where there is conflicting medical opinion employers can prefer one opinion over another, as long as they have reasonable grounds to explain their choice. They must also follow that advice, so light duties means exactly that. Before you start agree with your manager what light duties means – if possible take a rep with you. If your manager tries to make you do more, refuse and take out a grievance.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. A colleague is facing a disciplinary that will probably result in dismissal. She is due to retire in four months time. She was advised to go on long-term sick until after her retirement date so they wouldn’t be able to sack her if she had a doctor’s note. Is that right?

A. No – a company is fully within its rights to dismiss an employee whether or not they are on certified sickness. If they reasonably believe the sickness is to stop a disciplinary action they can hold a hearing in the employee’s absence and dismiss anyway. Don’t forget that sickness absence can also be a fair reason for dismissal, even if you have a doctor’s note. The best thing she can do is get her rep involved to make a case for mitigating circumstances, bearing in mind her length of service, previous record, etc., use the appeals process and fight it that way.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I have had quite a bit of sickness this year and the company is talking about sacking me for it. I have had a doctor’s note every time so it was all genuine. Can they still sack me?

A. Provided the company can show it has acted “reasonably” by, for example, taking steps to investigate the nature of the sickness and absence, issuing warnings regarding future sickness and consulting a doctor about the nature of your illness, then yes, they do have the right to terminate your contract. Dismissal on the grounds of capability is regarded as a fair reason.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I have been on long term sick for 13 months and my employer is talking about terminating my contract. Can they just sack me like that?

A. Capacity can be a fair reason for dismissal, but as you are genuinely ill and unlikely to work again the employer must act reasonably. In a recent Employment Appeal Tribunal (EAT) case the court ruled that the dismissal of an employee was unfair because the employer did not consider retiring him on ill-health grounds first (which would have given him an enhanced pension). When you go to meet your manager make sure that you take a rep with you and that ill-health retirement is discussed as an option.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. My doctor has written a report for my employer. Can I ask to see it?

A. You have a right to see it or have a copy of it. Your employer is required under the Access to Medical Records Act 1988 to have notified you of that right when they requested permission to approach your doctor. You should note that you must request to see it within 21 days of the employer’s request, otherwise you lose that right.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I have seen my doctor’s report and I don’t think it explains things properly. Is there anything I can do?

A. You can ask him to change it. You must put your request in writing and it is entirely up to the doctor whether he does or not. If he won’t change it you have a right to attach your own comments before it is sent, or even withdraw permission for it to be sent.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I have been off sick for two months and now my manager wants to come and see me. Can I say no?

A. Many companies have a policy of welfare visits to employees who are on long-term sick leave as part of their duty of care. You have the right to refuse them entry. If you do accept a visit, it should not become a disciplinary or sickness attendance hearing. If you feel that it is, then you are entitled to ask them to leave. For your own peace of mind you might like to ask a partner or friend to sit with you during the visit and in any case never sign anything without speaking to the Helpdesk first.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I was taken ill while visiting my family on holiday and had to stay another three weeks. I got a sick note from a local doctor but the company is refusing to accept it and have withheld my pay for the extra time I was away. Are they allowed to do that?

A. If the company has a reasonable belief that your absence was not genuine then they are within their rights to refuse to accept your foreign sick note.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I was taken ill while I was on leave and when I told my employer they said it was a shame but tough, basically. I would have thought that if I was sick during my leave I could claim my leave back.

A. Up to now the answer would have been “that’s a shame, but tough”. There has, however, been a decision from the European Court of Justice (ECJ), to the effect that this might not be the case. The ECJ said that a worker is entitled to their minimum statutory leave and if they are sick they are not on leave, so it should be taken at a different time. There are certain difficulties here though. If you have already taken all your statutory leave and you were sick during your additional contractual leave, you may not be entitled to reclaim it that would depend on your contract. Also, an employer does not have to accept a sick note issued abroad, so if you go sick on a foreign holiday they may refuse to accept that you were genuinely sick and not give the leave back.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I was off sick for 8 days and sent in a sick note. It’s the first time I’ve been off sick for five years but my boss has arranged for me to see the occupational health service. Can they make me go?

A. Only if it says so in your contract. If it does then a refusal could lead to disciplinary action. However, the company has to act reasonably and it does seem unreasonable to send you to their OHS with your exemplary sick record. Ask your boss for written reasons why he is sending you. Depending on the answer you may have grounds for a grievance.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. My manager stopped my sick pay as he said it was at his discretion and he didn’t think I was genuinely sick, even though I sent in a sick note.

A. You need to check your contract to see if this is entirely discretionary or if there are conditions. It may also be worth appealing the decision, following the case of Merseyrail Electrics 2002 Ltd (EAT/0162/07), where the employer claimed there was a contractual term that allowed it to withhold sick pay if there was doubt that the employee was genuinely ill. The Employment Appeal Tribunal held that this did not apply, because any doubt about the employee’s illness had been removed by medical certificates received by the employer. Once a medical certificate had been presented to the employer, in the absence of a contrary medical opinion the employer was no longer entitled to maintain its doubt of the employee’s illness.

In addition, provided you are submitting medical certificates an employer cannot stop paying your Statutory Sick Pay entitlement.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I have applied for time off to study for a Level 2 SVQ at my local college one day a week. My boss has made enquiries and come back to say that 16 and 17 year olds are entitled to paid time off for study purposes but as I will be 18 half way through I will not be able to finish it unless I take unpaid leave.

A. Well he’s half right. I wonder who he asked? Probably somebody in the pub. Get your rep to refer him to the Employment Rights Act 1996, Section 63A (4)(c). This states that where you started the course before your 18th birthday you are allowed paid time off to complete it even though you become 18 part way through. If your boss still doesn’t co-operate get your rep to help you take out a grievance.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I work in the travel trade and I have been offered a four day training trip to a resort I haven’t been to before. I am keen to go but they have now said I have to use my annual leave. The trip will really help me with my sales targets but I don’t want to use my leave up. I only get the pro-rata equivalent of 20 days plus bank holidays and I need all that to go away with my family.

A. Your question raises a few issues Firstly, under the Working Time Regulations, training time is counted as working time, so you shouldn’t be expected to use your own leave. In fact, as you don’t normally work on two of the days you would be away they should be paying you for those days anyway. I assume that while you are there you will be expected to be actually working, you won’t just be sitting by the pool. You could, if you want to, sit in the sun downing cocktails all day and they couldn’t say anything about it because you would be on leave! They may say that as you won’t use your leave they won’t offer any more trips, but in that case you could take out a grievance as that would not only be detrimental to your earning opportunities and your ability to meet your targets but could also be victimisation for insisting on your statutory right to annual leave.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. We have been TUPE transferred and the new company has said that they intend to harmonise our terms and conditions. We will be worse off but the company says the new rules allow them to force it through. I thought TUPE protected us.

A. Under Regulation 4(4) of TUPE 2006 it is now possible to make changes to employment terms before or after a transfer (a “permitted change”) where the sole or principal reason is an economic, technical or organisational (ETO) reason, but only if the reason is an ETO reason “entailing changes in the workforce” and not connected with the actual transfer itself. While this may seem to allow employers to make changes to terms and conditions following a transfer the courts have held that the works “entailing changes in the workforce” mean that there must be changes in the number or functions of the relevant employees. This means that in most cases, harmonisation of terms and conditions of employment will not constitute a valid ETO reason, because the changes will not entail a change in the workforce, and so would not be allowed.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. Three of us were transferred under TUPE to our current company and we’re all TSSA members although the new company recognises a different union. I was the TSSA rep in the old company and my colleague who has a grievance asked me to represent him. The company have said that he has to have a rep from the other union as they don’t recognise TSSA.

A. Putting aside the issue that collective bargaining rights also transfer under TUPE, if you were an accredited TSSA rep you have a right to accompany and a right to reasonable paid time off. The ACAS CoP says that “The right to time off in these situations applies regardless of whether the certified person [that’s you] belongs to a recognised union or not although the worker being accompanied must be employed by the same employer”. Arm yourself with a copy of the Code of Practice and show it to your manager when you ask to be released to accompany your colleague.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. My employer is aware that I am HIV positive and this has never been a problem but we are in the process of being TUPEd to another company. Will my current employer be able to pass on this information on to the new company?

A. This is covered by section 2 of the Data Protection Act and the TUPE Regulations. Basically, your employer must get your explicit consent before they can pass on ‘sensitive’ data. This is defined as personal data consisting of information about:

racial or ethnic origin; political opinions; religious belief; trade union membership; physical or mental health; sexual life; commission of any offence or the sentence of any court.

In a TUPE situation your company is required to pass on details about your general employment, disciplinaries, grievances and so on but under section 7 of the DPA you are entitled to be informed if your personal data is being processed for any reason, so they should notify you, providing a description of the personal date, why it is being processed and who will receive it.

It is also worth remembering that as somebody with HIV you are protected by the Equality Act but to be fully protected you would need to let your new employer know about it.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. We are going to be transferred to another company under TUPE and I have heard they are a poor company to work for. Do I have to go?

A. If you decide not to transfer you could be regarded as having resigned voluntarily from your job and you would not be able to claim redundancy or unfair dismissal.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. The company I work for has just been taken over by a private equity group. We expect they will try to cut costs by driving down our terms and conditions and imposing redundancies. Am I right in thinking that we are protected by the TUPE regulations?

A. Unfortunately, in this case the answer is no. They got the company by buying the majority of shares, so this is not a TUPE transfer and the regulations do not apply.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. We don’t have a safety rep at the moment and my boss said I have to do it. We do need a safety rep here so how do I go about it?

A. Let’s get a few things straight. Firstly, where the union is recognised for collective bargaining purposes it is the union who appoints the H&S rep, not your boss. Secondly, union appointed reps have legal rights and immunities to protect them from liability when performing their duties which an employer appointed rep does not have, so you should be very careful what you take on.

However, if you are interested in filling the union H&S rep vacancy then we would be pleased to have you. You have to be nominated by your colleagues. The Helpdeks will put you in touch with your local organiser who will send a nomination form and arrange for you to have paid time off for training where you will learn how to represent your members in what can be a very difficult but rewarding union role.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. We are getting fed up with the way we are treated at work but we don’t have a local rep to speak for us. The others in the office suggested I become the rep but I’m not sure what it involves.

A. Although when you handle your first case it may feel like it, you don’t just get thrown in at the deep end. You are entitled to reasonable paid time off for training and we pride ourselves on the training programmes we have developed to help with all aspects of being a rep. The Helpdesk is also available to advise reps, so make use of us. You can make a real difference to the working lives of your colleagues, whether by representing them individually over disciplinaries or grievances or negotiating directly with management over such issues as rosters. You don’t always win and you can rarely please everybody but it’s like most other things, the more you do it the easier and more rewarding it gets.

Mind you, all this is pretty academic if we aren’t recognised for collective bargaining, so if you are still interested you will need to contact your Regional Organiser, who will be able to advise you on that, as well as explain how to call an election, what the nomination criteria are, etc. and arrange your training when you are elected.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. My employer seems to treat Health and Safety issues as being unimportant. As the H&S rep I have a job getting them to take it seriously - any ideas?

A. Why not ask to see the company Health & Safety policy. Section 2(3) of the HASAW Act 1974 requires all employers with over 5 employees to have a written policy showing what their general policy is, who will manage it and what rules and procedures will apply. You can then bring it to their attention every time something happens to contravene it. If they haven’t one or it isn’t revised regularly (as required by Section 2(3)) you could even offer to help them produce an updated version. That should ensure it is done properly.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I have just been elected as the local rep but I find the prospect a but daunting. How can I find out how to represent colleagues at disciplinaries etc, without looking a complete idiot?

A. Everybody finds it difficult at first but there’s no need to panic. You are entitled to paid time off to attend training courses, and in addition to initial reps training we offer a number of useful courses throughout the year. It is also useful to find out who the other reps are so you can swap advice, tactics and experiences. Remember you can also talk issues through with the Helpdesk.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I am a rep, though I only work part-time. When I go on courses the other reps get paid for a full day, but I am only paid for my part-time hours. Shouldn’t I be paid for the whole time on a course?

A. Yes you should. According to a ruling by the European Court, a part-time worker who attends training in connection with their trade union duties must be paid the same hours as their full-time colleagues.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I have been a Health and Safety rep for a while now and I have accumulated lots of leaflets, booklets, risk assessments, etc. My problem is I have nowhere to keep them at work. Should my employer provide me with storage space?

A. Employers are required to provide you with a lot more than that. They should provide whatever facilities you may “reasonably require”. This is at least a lockable filing cabinet and a notice board, and it could stretch to office space, a desk, photocopying, telephone, PC. You could even ask for a digital camera to record hazards, incidents, etc (but not your hols). You should request whatever you think you need to do the job properly and don’t be put off. They may argue over what is “reasonable” but if you don’t ask you don’t get.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. My colleague and I have been elected as temporary reps to deal with an imminent TUPE transfer, but we are not sure exactly what we should be doing.

A. Employees appointed or elected for consultation on redundancies or business transfers have the right to paid time off for training. You then have a right to paid time off in connection with your reps duties. If your employer does not grant it then you have a right to go to an employment tribunal.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. A fellow employee asked me to accompany her to a disciplinary hearing, as we have no union rep. The company said I had to take time off to do it and now I think they are trying to make life difficult for me.

A. Under Section 10 of the Employment Rights Act 1999 workers attending a hearing and accompanying co workers have a right to be paid. You also have a right not to suffer detrimental act or dismissal for exercising your section 10 rights. If you feel that you are being victimised you should start formal grievance proceedings.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I am a staff rep and a learning rep and I am having all sorts of trouble being released, even to represent members at disciplinaries. Don't I have a right to time off?

A. The Advisory, Conciliation and Arbitration Service (ACAS) have just reissued their Code of Practice (CoP) 3 on time off for trade union duties and activities. It states that:

“20. Trade union representatives are statutorily entitled to take a reasonable amount of paid time off to accompany a worker at a disciplinary or grievance hearing so long as they have been certified by their union as being capable of acting as a worker’s companion.”

Check with your company council rep to see if there is an agreement with your employer about how much facility time you are allowed. If you have no agreement we will have to argue about what is reasonable – if necessary to a tribunal. Don’t forget that you are allowed time off, which means your own work should not pile up while you are doing your union duties but your workload should be adjusted accordingly. The ACAS CoP also includes guidance on time off for union learning representatives. You can download a copy at: http://www.acas.org.uk/media/pdf/l/q/CP03_1.pdf. While you’re at it download one for your boss as well.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. We have a vacancy for a rep in our office and I wouldn’t mind doing it, but I’m worried my work will pile up while I’m away representing people.

A. As a rep for a recognised union you have a legal right to paid time off to perform your trade union duties under the Trade Union and labour Reform Consolidation Act. This includes negotiation, disciplines, grievances, dismissals, terms and conditions etc. You are entitled to reasonable facility time. Speak to your manager to see how your workload can be altered to allow for your absence. If they refuse to make adjustments you can approach your company council rep or your full-time organiser to help you.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I am a local rep and we are negotiating a major change to our rosters, affecting 50 staff. I have asked to be released for a day to consult the members about management’s proposals but my boss has said I must do it in my own time.

A. Oh dear, looks like we’ve identified a training need. Go to the ACAS website and download the Code of Practice, “Time Off for Trade Union Duties and Activities”. You can then show her where it says that as an accredited rep of a recognised union you are entitled to reasonable paid time off for your trade union duties, which include consulting with your members. You can also point out that this also means that your work shouldn’t pile up while you are doing your union business but your workload should be adjusted to account for it. And if its that many staff you probably need at least two days to do it properly.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I am the local Health & Safety rep and I have done the Stage 1 H&S course. I now want to do Stage 2 but my HR department says I don’t need to and they have refused me time off to attend. I thought I was entitled to training.

A. Under the Safety Representatives and Safety Committees Regulation 4(2)(b) you have the right to attend (in work time) such union-approved safety courses as may be “reasonable in all circumstances”. Tribunals have interpreted this to mean training that is helpful to the safety rep in carrying out their duties, which should not necessarily be restricted to workplace issue. Effectively it is up to you to decide what level of training you need.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I have just been elected learning rep and I need some training but my manager says that learning reps aren’t allowed paid time off.

A. It looks like she needs some training. Suggest that she read the ACAS Code of Practice: Time Off for Trade Union Duties and Activities for further enlightenment. Learning reps are allowed reasonable time off to undergo training relevant to their functions. Your company recognises the TSSA so there should be a facilities agreement that stipulates when and how much time you can expect. If she continues to make things awkward for you we can go to an employment tribunal so keep a log of all your requests and refusals. We have structured training programmes for all our reps and as a ULR you must attend the one day induction course and the five day TUC learning reps course within six months of being appointed otherwise the employer can de-recognise you.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I have been asked to represent a member at a Stage 3 “Managing for Attendance” hearing. Management has told me that I can attend but not act as a “rep” in the normal sense, though I may be able to make a statement at the end. Can they say that?

A. We need to look at what the MFA hearing is about and the possible consequences. The next stage is dismissal, so I would say the consequences were serious. In that case the employer must act reasonably and so refusal to let you represent your member properly could make any dismissal unfair. Also, although dismissal for sickness is one of the so called ‘fair’ reasons, you can still argue that it is still part of the disciplinary process and on that basis the member has a right to representation as per the Employment Rights Act 1996. You also need to be fully conversant with your company’s MFA policy. The company has to comply with it and if that allows a rep to attend then you have every right to be there and to represent.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. We were in a meeting and the manager started saying that he couldn’t agree to our suggestion because of European law. We weren’t sure if he was right or not. What do you think we should do if he brings this up at the next meeting?

A. It is quite common for people to quote or try to hide behind so called “European Law”. Ask him to be more specific – which section of which law is he referring to? You can also seek an adjournment and phone the Helpdesk. Don’t forget we are available as a resource for reps, and we’ll soon tell you if he’s trying to pull the wool over your eyes.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I have a disciplinary hearing due and I wanted to take a colleague who was a union rep in his last job. The company says that I should pick a rep from the staff association but I think they’re too close to management. Can I insist on my own rep?

A. You certainly can. The Employment Relations Act 1999 says that where you “reasonably request” to be accompanied the company has to allow it. Among those listed as being allowed to attend is simply “another of the employer’s workforce”. Insist on your right to have the rep of your choice. Your colleague has the right to paid time off to attend and the right not to be victimised for going with you.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I need a rep for a grievance hearing and the Helpdesk passed me on to a colleague who works for the company. Shouldn’t I have someone who works for the union?

A. The fact that they work for the company will make no difference. Your colleague is a trained rep elected by the members in the workplace to represent them. Because they work alongside the people they represent, our lay members are more likely to be aware of and understand the issues that concern our members. They are also better placed to respond quickly to resolve problems as they arise.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. Our boss has said that instead of having one 20-minute break we must take two 10-minute breaks. This doesn’t give us enough time to relax, eat out food or even enjoy a cup of coffee. Can he do this?

A. Where your daily working time is more than 6 hours you are entitled to a rest break. The rest break can be regulated by a collective or workplace agreement (this will usually be an agreement with a union), but if there is no such agreement the rest break will be for an uninterrupted period of not less than 20 minutes and you will be entitled to spend that break away from your workstation. It is up to your manager when you take your break, but it should be during your shift, not at the beginning or end of it.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

My boss tells me I am only allowed a 20 minute break even though we work a nine-hour day,but my mum says I should have longer because I am only 17.

You should always listen to your mum! As a young worker you are entitled under the Working Time Regulations to a minimum 30 minute break after four hours work. You should also note that you must have two days off and must not work over 40 hours per week. Unlike adults, you are not allowed to opt out of the maximum working hours regulations.

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I understand there are special working time regulations for night workers. I work nights but how do I know if I’m covered by the regulations?

A. You will be a “night worker” if your daily working time includes at least hours between 11pm and 6am:

• On most days you work;
• On a proportion of the days you work which is specified in a collective or workplace agreement;
• Often enough for it to be said that you work such hours “as a normal course”. “As a normal course” means on a regular basis, so if you work nights occasionally or on an ad hoc basis you wouldn’t be classed as a night worker.
   

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. When I joined my company the contract I signed said I would opt out of the 48 hour week. Now I want to change my mind but the boss says that as I’ve signed a contract I can’t.

A. Yes you can. You have the right to cancel an opt-out even if it’s part of a contract you’ve signed. You may need to give notice (see Opting out (2) for more information).
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. I opted out of the 48 hour working time limit but my job has changed and I no longer get paid for overtime so I am going to opt back in. My employer says when I opted out I agreed to give six months notice to opt in, but I don’t remember doing that.

A. It makes no odds either way, you can’t be required to give more than three months notice. If there was no agreed period on your opt out notice you only need to give seven days.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

I work in the travel trade and have been offered a four day training trip to a resort I haven’t been to before. I am keen to go but they have now said I have to use my annual leave. The trip will really help me with my sales targets, but I don’t want to use my leave up. I only get the pro-rata equivalent of 20 days plus bank holidays and I need all that to go away with my family.

Your question raises a few issues. Firstly, under the Working Time Regulations, training time is counted as working time, so you shouldn’t be expected to use your own leave. In fact, as you don’t normally work on two of the days you would be away they should be paying you for those days anyway. I assume that while you are there you will be expected to be actually working, you won’t just be sitting by the pool. You could, if you want to, sit in the sun downing cocktails all day and they couldn’t say anything about it because you would be on leave! They may say that as you won’t use your leave they won’t offer any more trips, but in that case you could take out a grievance as that would not only be detrimental to your earning opportunities and your ability to meet your targets, but could also be victimisation for insisting on your statutory right to annual leave.

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. My company is sponsoring me at college one day a week. I enjoy going but they say it doesn’t count as working time for my 48 hour week maximum.

A. No, it doesn’t. While job-related training would be counted as part of your working time, evening and day-release classes aren’t, even when, as in your case, they are paid for by your employer.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.

Q. My boss tells me I am only allowed a 20 minute break even though we work a 9-hour day, but my Mum says I should have longer because I am only 17.

A. You should always listen to your Mum. As a young worker you are entitled to a minimum break of 30 minutes after 4½ hours work. Workers under 18 should:

• work no more than 8 hours a day
• not work over 40 hours a week
• have 2 days a week off
• not work at night between 10pm and 6am, or between 11pm and 7pm

Unlike adults you are not allowed to opt out of the maximum working hours regulations.
 

TSSA members who have further queries on the above are advised to contact their rep or the Helpdesk for guidance.