Return to work after maternity leave.

[des8]

Looking for confirmation that I'm on the right track.

One of my daughters has worked for a sole trader shop owner for 6 years+.
She is the only full time employee. Two or three other part timers.
She has been on maternity leave and is due to return shortly.
She wants to work part time two days a week, so approached her boss about it.
He said because of the cost to him he would only entertain it if she went self employed.
The only witness to this conversation was the woman (his book keeper) who was standing in for my daughter during her maternity leave (and will lose her position as full time worker).
They say my daughter agreed to this arrangement.
My daughter says she wanted to think it over as there were implications about eg holidays.
The next day she returned to decline the offer, and was told that as she had accepted it, she was bound by it.
A heated discussion followed!!!

My daughter told me and I went to see her boss in an attempt to resolve the matter.
He indicated he did not want my daughter to return as she had changed her mind.
He couldn't understand the problem over holidays as the few days that would be due to her would be taken up by bank holidays etc etc.

I didn't argue, although I did wonder to myself how 11 days holiday could be absorbed by bank holidays.

My daughter then wrote to him as follows:

Dear XXX,

Followingour recent discussions about my return to work and the possibility ofchanging my working pattern I write to confirm the position.


I amdue to return to work full time on xx February 2016 after my ordinarymaternity leave and four weeks parental leave finish.
Duringmy first week back at work I will be taking a week's annual leave, asagreed already.


Inow request under my right provided under section 80F EmploymentRights Act 1996 to work a flexible working pattern that is differentto my current working pattern. It is a requirement of The FlexibleWorking Regulations 2014 that this request is made in writing.


Forthe record I confirm that I have at least 26 weeks of service, andhave not previously made a request under section 80F EmploymentRights Act 1996.


Icurrently work Monday to Friday 09.00am to 05.30pm, and occasionallyon Saturday and would like to change it, with immediate effect (or atthe latest within three months) to Monday and Thursday 09.00am to05.30pm and occasionally on Saturday, and other days if required fromtime to time.


Ibelieve this will give great flexibility to staffing, giving a boostto staffing levels on Thursday (the busiest day due to inwarddeliveries).


I ammaking this request in order to care for my 9 month old daughter, asI cannot find childcare which is affordable or covers all of myworking hours.


Pleasenote the only change being requested is to my working pattern, allother terms and conditions of my contract remain unchanged.


Yourssincerely


As yet he has not responded, and I doubt he will.

I'm expecting this to go to an unfair dismissal claim, either Tribunal or CC for breach of contract.

As I see it:
-by any test (ET or HMRC) as a part time worker she would be an employee
-accordingly even if she paid her own tax and NI she would still be entitled to employee benefits such as statutory sick pay, holidays, redundancy pay etc
-her employer would be breaking the law by not operating PAYE & NI in respect of her

So even if she had agreed verbally to "go self employed" this was invalid as one cannot agree to something which allows another to break the law (or something like that!)
This means that IF she had changed her mind about accepting the offer her employer cannot take that as her resignation.
For the record she denies agreeing to going self employed.

And by the by, she has never had a written statement of employment terms!


Please please tell me I'm correct (or better still tell me the best way to handle this)

[teaboy2]

Re: Return to work after maternity leave.

Its also sexual discrimination Des for not allowing her to return to work under her contract after maternity leave!

Also she didn't agree to self employed work, only that she'd think about. The witness to the conversation has motive to support the employers side as clearly she'd loose hours once your daugther returned to work - Therefore witness statement would be easy to dispute and have dismissed as lies. Also his reason for wanting her to go self employed if she wants to workj part time, being too expensive for him makes no sense, as it would cost him less due to the reduce wages he'd have to pay her as an employee! Plus hed still have to pay your daugther the hourly rate shes currently on and inrease it to living wage rate in april even if self employed, anyway!

Failure to supply written statement is breach of section 1 of the employment rights act 1996.

Your daugthers refusal to go self employed is certainly not a resignation its a refusal to mutually terminate the contract of employment in favour of creating a less favourable contract to which she would have been stripped of all employment rights and basically could have been told one day she was no longer needed and would have no way of legally challenging him!

Also get ACAS involved now mate as well!

[ostell]

Re: Return to work after maternity leave.

She can not be classed as self emplyed as the employer would be making decisions about hours etc and by all the HMRC rules she is employed. The employer is hoping to save by not being liable for holidays, sick pay etc and not having to pay the employers portion of NI. Your daughter would lose out as she would not get benefits and would have to pay unpaid tax and NI.

One of my daughter's employers tried this trick and it cost him dear in the end

[des8]

Re: Return to work after maternity leave.

Cheers , thanks for that.

[Openlaw15]

Re: Return to work after maternity leave.

Looking for confirmation that I'm on the right track.

One of my daughters has worked for a sole trader shop owner for 6 years+.
She is the only full time employee. Two or three other part timers.
She has been on maternity leave and is due to return shortly.
She wants to work part time two days a week, so approached her boss about it.
He said because of the cost to him he would only entertain it if she went self employed.
The only witness to this conversation was the woman (his book keeper) who was standing in for my daughter during her maternity leave (and will lose her position as full time worker).
They say my daughter agreed to this arrangement.
My daughter says she wanted to think it over as there were implications about eg holidays.
The next day she returned to decline the offer, and was told that as she had accepted it, she was bound by it.
A heated discussion followed!!!

My daughter told me and I went to see her boss in an attempt to resolve the matter.
He indicated he did not want my daughter to return as she had changed her mind.
He couldn't understand the problem over holidays as the few days that would be due to her would be taken up by bank holidays etc etc.

I didn't argue, although I did wonder to myself how 11 days holiday could be absorbed by bank holidays.

My daughter then wrote to him as follows:

Dear XXX,

Followingour recent discussions about my return to work and the possibility ofchanging my working pattern I write to confirm the position.


I amdue to return to work full time on xx February 2016 after my ordinarymaternity leave and four weeks parental leave finish.
Duringmy first week back at work I will be taking a week's annual leave, asagreed already.


Inow request under my right provided under section 80F EmploymentRights Act 1996 to work a flexible working pattern that is differentto my current working pattern. It is a requirement of The FlexibleWorking Regulations 2014 that this request is made in writing.


Forthe record I confirm that I have at least 26 weeks of service, andhave not previously made a request under section 80F EmploymentRights Act 1996.


Icurrently work Monday to Friday 09.00am to 05.30pm, and occasionallyon Saturday and would like to change it, with immediate effect (or atthe latest within three months) to Monday and Thursday 09.00am to05.30pm and occasionally on Saturday, and other days if required fromtime to time.


Ibelieve this will give great flexibility to staffing, giving a boostto staffing levels on Thursday (the busiest day due to inwarddeliveries).


I ammaking this request in order to care for my 9 month old daughter, asI cannot find childcare which is affordable or covers all of myworking hours.


Pleasenote the only change being requested is to my working pattern, allother terms and conditions of my contract remain unchanged.


Yourssincerely


As yet he has not responded, and I doubt he will.

I'm expecting this to go to an unfair dismissal claim, either Tribunal or CC for breach of contract.

As I see it:
-by any test (ET or HMRC) as a part time worker she would be an employee
-accordingly even if she paid her own tax and NI she would still be entitled to employee benefits such as statutory sick pay, holidays, redundancy pay etc
-her employer would be breaking the law by not operating PAYE & NI in respect of her

So even if she had agreed verbally to "go self employed" this was invalid as one cannot agree to something which allows another to break the law (or something like that!)
This means that IF she had changed her mind about accepting the offer her employer cannot take that as her resignation.
For the record she denies agreeing to going self employed.

And by the by, she has never had a written statement of employment terms!


Please please tell me I'm correct (or better still tell me the best way to handle this)

The boss said he'd only consider the flexible working hours if she went self employed. This could be a genuine business reason for refusal under section 80G, Employment Act 1996. However if he has sacked her that's wrongful dismissal. If she felt she could no longer work there owing to the issue with the self employment...it is effectively unfair dismissal.

[mariefab]

Re: Return to work after maternity leave.

The difficulty is that she's absolutely entitled to return to her former full time role.
While she is entitled to request flexible working, as a micro employer he probably wouldn't find it too difficult to find a lawful reason to deny her request.

As for the rest; her current position is that she's still on maternity leave until the date of her notified return. Absent her written resignation he's facing an automatically unfair dismissal claim as well as the discrimination if he doesn't permit her to return to her former role on the date she originally gave.

[Openlaw15]

Re: Return to work after maternity leave.

Its also sexual discrimination Des for not allowing her to return to work under her contract after maternity leave!

Also she didn't agree to self employed work, only that she'd think about. The witness to the conversation has motive to support the employers side as clearly she'd loose hours once your daugther returned to work - Therefore witness statement would be easy to dispute and have dismissed as lies. Also his reason for wanting her to go self employed if she wants to workj part time, being too expensive for him makes no sense, as it would cost him less due to the reduce wages he'd have to pay her as an employee! Plus hed still have to pay your daugther the hourly rate shes currently on and inrease it to living wage rate in april even if self employed, anyway!

Failure to supply written statement is breach of section 1 of the employment rights act 1996.

Your daugthers refusal to go self employed is certainly not a resignation its a refusal to mutually terminate the contract of employment in favour of creating a less favourable contract to which she would have been stripped of all employment rights and basically could have been told one day she was no longer needed and would have no way of legally challenging him!

Also get ACAS involved now mate as well!

It could potentially be indirect discrimination under the Equality Act 2010. The effect would be discriminatory not just because she's female which is a statutory protection, she has a child and needs to reduce her work no doubt to be a mother, so these reasons amount to a claim of an indirect discrimination. Employer: As with EU legislation, the EA 2010 is influenced by the EU, so in short the employer needs a genuine reason to discriminate (legitimate aim), and for that reason to be proportionate (principal of proportionately).

[des8]

Re: Return to work after maternity leave.

Gosh, come back from an overnight kip and find all this assistance,
Many thanks to you all, and I'll keep you posted.

[mariefab]

Re: Return to work after maternity leave.

Des, what is your daughter's preferred outcome at this point?
Is it still to go back part time if posssible?
Or, does she feel that this is no longer an option and is now looking to acquire evidence for a potential claim?

[des8]

Re: Return to work after maternity leave.

She'd love to give up work completely and stay at home playing with her daughter full time!

However this is not really an option and she just needs to return to work for two days a week, but if necessary she would return full time.

[ostell]

Re: Return to work after maternity leave.

Here's a government explanation of employed/self employed. I think your daughter fits into the employed definition.

[Openlaw15]

Re: Return to work after maternity leave.

She'd love to give up work completely and stay at home playing with her daughter full time!

However this is not really an option and she just needs to return to work for two days a week, but if necessary she would return full time.

It's shame the other female couldn't stay on and do the 3 days whilst your daughter does the 2 days. She probably needs the full-time work though to the detriment of your daughter.

[des8]

Re: Return to work after maternity leave.

As far as I can see anybody who accepts "self employed" status whilst working as a shop assistant (full or part time) must actually be an employee according to HMRC or Employment Tribunal guidelines.
Employers use it as a way of depriving peoples of their employment rights (sick pay, redundancy pay holiday pay etc) in an attempt to save themselves some pennies.
If the so called self employed know their rights, however, it can cause a bit of a shock if they are fired and then claim unfair dismissal.
Bonus is that HMRC then come calling asking for NI contributions & PAYE, and keep a close eye on the business for years after!!

[mariefab]

Re: Return to work after maternity leave.

If she wants to play nice, she could follow up her earlier letter by proposing part time working achieved by a job share (as Openlaw suggested). The woman currently covering her leave may be prepared to cover her other days. Such an arrangement would benefit the employer because they may be able to cover each others holidays and other absences.

If her employer maintains his refusal to permit her to return your daughter has a slamdunk unfair dismissal claim.
How likely is it that an employee,
with 6 years service,
at a time when her employment has additional protection under several statutes,
goes to discuss working part time with her employer,
then leaves a while later having agreed to...
the termination of her employment
and to, in future, collude with her employer to deceive HMRC.
Employment Tribunals, like other civil courts, work on the balance of probabilities and this one's a no-brainer.

[des8]

Re: Return to work after maternity leave.

Thanks Marie.
I'm becoming more convinced the man has gone doolally tap.the more I think about the situation!