hey everybody

anyone know what sort of rights the employee/employer has in the following circumstances?

if someone buys a company and with it they get a secretary and this person has worked for the company for say 10 years. after owning the company for 5 years you realise this person doesn't have a contract!

now, this person was off sick for nearly 3 months last year and was paid fully, but when a letter was sent saying that their pay will be stopped after 3 months they came back to work all of a sudden.

now, the same thing has happened, this employee was involved in a car crash and now has a bad back. so, what can the employer do with regards to salary payments? the employee has already been off a few months (and doesn't know when they'll be back) and is taking the other car driver to court as well (i.e. unable to work due to accident).

cheers
steven

 

Unless the employee has a contract that states that they will be paid sick pay at a given rate, then the only obligation the employer has is to pay statutory sick pay (SSP), which is close to **** all (about £60 IIRC). Reducing pay to SSP tends to make malingerers come back to work pretty quick, in my experience.

 

agreed as above, £60 a weekish SSP, then fukc her in the **** (oh sorry thats the dating thread)

 

cheers for the very swift info - but i think the problem is that as this employee has been with the company for a significant time should they not be entitled to a contract? (i think i read somewhere before that after 2 years or something they are legally entitled to one?)

cheers
steven

 

I can't see the lack of contract being a particular problem. She is entitled to one, but she can't decide what it says in it. Obviously you can't change basic terms like salary and holiday entitlement, but it can include something like "payment of any sick pay over and above statutory sick pay will be entirely at the discretion of the employer"

i can email you the one we use if you like.

 

One flaw in the plan may be that if no contract exists, but a precedent has been set, then she can claim to have those rights continued if/when a contract is produced. So if she's had 3 months off with full sick pay before, and you suddenly introduce a contract which doesn't have provision for anything other than SSP, then she could claim unfair contract alteration, etc.

 

propercharlie - swmillar@aol.com cheers!

marko - yes, that makes sense. but before it had been said that after 3 months the salary would be stopped. is that legal? i.e. how long does the SSP have to be paid for?

 

that is a possibility, mark. however, the discretionary clause makes it possible to argue that it was paid "at the employers discretion" previosuly, and now circumstances have changed to mean that the employer no longer sees fit to continue paying. It's not 100% watertight but if the employer can prove that the employee was not making all reasonable efforts to return to work, they have a disciplnary issue in any case. Plus if she is going for compo she can get the lost earnings back for the other party.

 

if you say in the contract that sick payment over and above SSP is at management discretion then you can weasle out of it because it was decided to pay her last time, this time she gets fingered.

Nice touch I would love to see her face when you phone her..

 

great info guys!

but unfortunately there is no contract therefore no discretionary clause

anyone know how long you have to pay someone when they are off sick?

 

YOU DONT...
if theres no contract then let her die on SSP

 

from the relevent IR form:

"you cannot get SSP after you have had SSP for 28 weeks in or row or periods of sickness that are 8 weeks or less apart and that add up to 28 weeks"

there is no formal obligation to pay above SSP and no contract that says you have to.

 

thanks guys!

cheers for the email charlie

 

Mark's point is valid in this case. In the absence of a contract, any court ruling would be decided on the basis of 'custom and practice'.

Loads of companies get caught out on this one.

Be very careful.

IanF

 

I only knew that because I've been in the situation numerous times where I've continued working for a client past the end of a contract end date, but it's been days (or weeks) before a renewal contract has been sorted. In those cases I checked the legal position in terms of payment (and me turning up for work) and found that basically in absence of a contract, the terms and conditions would continue based on previous history ('practice and custom' as Ian put it).