Employee seeking advice....

[Babybear1985]

Hi there boys and girls,

Wondering if you can help me with a few things, I will try to make this simple although its a bit lenghy.

First of all I have been working for comany A since October 2008, I had a bit of time off due to illness and personal reasons one of which being a miscarrige in which I only ever recieved a verbal warning and was asked to improve things which I did. I work hard and am good at my job and the company know that I am and have always acknowledged that.

Company A closed down in August of this year to then reopen under a new name a week later doing exactly the same thing. They moved premises and took all the same staff with them.

I was never taken aside to confirm I was being made redundant (alongside everybody else) I was never recieved written confirmation, only told then we were going to be tradin under a new name, not to worry and my job was safe. Upon moving to the new offices a week of so later I recieved a P45 and a new contract to sign which stated that any previous service of emplyment would not count towards the new contract. Seeing as its a new company that kind of figures. However I then go on to find out I am pregnant and expecting at the same time as being given this new contract to sign. I refused to sign it upon the basis my previous service for company "A" was not counted and it means I would not get maternity pay any longer.I took this matter to my operation manager who advised me that they will honour maternity pay and she was looking into how to do this and would get back to me in which I replied i am not under any signed contract and she agreed that i was not at this moment in time.

Further to this matter I have had to take about a week off sick with pregnancy related illness since August 23rd and have found out that the company are looking into my absence from the last two years, I have a feeling they are going to try and get rid of me...

What I want to know is do I have any rights? Have they done anything unlawful? Where do I stand with regards to my contract and maternity pay and with regards to the absences with Company A when I now work for "Company B"

Any advice or help would be much appreciated to a newly expectant monther who is under enough stress...

oh also before I go, when moving office they advised me that they will accomdate the extra time I would have to travel and pay for the difference, neither of which they have done, I am sturggling with the 3 hour round trip to work and back on public transport everyday and rushing to get connecting travel that I have to get which is casuing a lot of stress and sickness, I have requested for my hours to be adapted or to work from home which I would be able to do only to be shot down and told no? Ant help with that one lol xx

 

[Babybear1985]

by the way I must apologise for all the spelling mistakes, typing too fast, its not that I'm dense lol,

Also for the record I want to work, I don't want to be on sick and have proposed all sorts of things to help me be able to work for the company taking into consideration the horrible symptoms and struggle I am currently having.

I am not some young girl who wants to take advantage of the system and sit on my backside for the next 9 months.

 

[Bri]

I can only offer my opinion based on my knowledge, Karl will be along soon to advise you properly.

Whilst I sympathise with your predicament youve refused to sign a new contract which has probably thrown some doubt into your employer about your commitment and your thrilling pregnancy.

I will advise on keeping a dialogue open with them and create an atmosphere of trust between yourself and your bosses.Your pregnancy is a common occurrence with business takeovers and the incumbent owner is paying out for maternity leave and cover and also keeping the post open for your return as employment law dictates. Its a thorny subject which between you should achieve positive outcomes. This is my opinion and not based on any legal obligations or outcomes.

 

[Babybear1985]

hi there

Thanks for your reply, I think I should maybe rephrase the fact that I "refused" to sign the contract, I mearly brought it to my managers attention that I thought it a little unfair I have worked hard for them for two years and becuase of the business closing and reopening I would lose out on Maternity pay, it was my line manger who agreed and stated they would honour it and see what they could do, I am simply asking for advise on how i bring up this subject again.

I know from readin this forum alot of businesses see pregnant women as basically a pain the backside, I have only had 5 days off sick and have kept my employers in the loop with doctors appointments and everything and also tried to work with them to arrange some alternative options so that they get the best out of me and I can give it to them....

I will certainly continue to keep the lines of communication open although as I stated (sorry if i have taken this the wrong way) but I am not a young women trying to take advantage, I like my job and im good at it and am trying hard to resolve matters to both their satisfaction and mine which doesnt seem to be happening. I am not asking for the world, just a few simple changes to help me whilst I get through the first trimester of this "thrilling" pregnancy which it very much is!

 

[bovine]

Ooh, its a bit complicated. I dont know if TUPE applies, but it sounds like it might, in which case your length of service will count from when you started with company A. If it doesnt apply, then you would be entitled to redundancy payment from A ( or the government fund that covers these things in the companies absence).

You should be aware that any time off you need for medical appointments relating to pregnancy you are allowed time off for by law.

With regard to the recent illness - the company cant have it both ways, they cant say they you dont have continuation of service and then look back at your last 2 years absence.

I dont think anything can be done about the office moving location. Unless you can get a health and safety review to cover it (this review is compulsory now that you are pregnant by the way). Not sure about that, I think covering the trip to work might be pushing it a bit far!

And please remember just because you havent signed a contract doesnt mean it cant be applied. Not sure all the rules with this, but someone here should be able to clarify it.

Pregnant ladies have quite a few rights. Make sure you know them. Sounds like your employer isnt quite up to speed with HR stuff so be careful and get proper advice. CAB would be useful for you i suspect.

As for the employer giving a verbal for having a miscarriage - im astounded.

 

[LicensedToTrade]

Bovine makes an excellent point. They cannot disregard your previous length of service and at the same time use information from this time. In reality if they are a phoenix company (in other words, the same people in a new company in the same industry) they cannot hold onto your personal records, this would be in breach of the data protection act. The only information they are allowed to use from the old company is the length of time you were employed for, the number of days you were absent and if you were dismissed. As the two companies most likely did not overlap in existance they cannot even use this information as Company A would not have existed to pass this information to Company B.

Can I ask what your job was and what industry you worked in? This is important if your job was tied to a contract that the company had won because TUPE (Transfer of Undertakings, Protection of Employment) would apply if the contract was transfered to Company B. If TUPE applies then your length of service is transferable as is your pension agreement. Although I'm not especially confident that TUPE does apply in this case.

Can you confirm that a new LTD company was actually formed and not just a name change? Was the previous company wound-up and struck off from companies house?

You can check this here... http://wck2.companieshouse.gov.uk/a92d15c2ebbbbe3c3e120a7cc30271dd/wcframe?name=accessCompanyInfo

I would also add that ACAS would be a good avenue to explore for advice.

 

[Babybear1985]

Ooh, its a bit complicated. I dont know if TUPE applies, but it sounds like it might, in which case your length of service will count from when you started with company A. If it doesnt apply, then you would be entitled to redundancy payment from A ( or the government fund that covers these things in the companies absence).

You should be aware that any time off you need for medical appointments relating to pregnancy you are allowed time off for by law.

With regard to the recent illness - the company cant have it both ways, they cant say they you dont have continuation of service and then look back at your last 2 years absence.

I dont think anything can be done about the office moving location. Unless you can get a health and safety review to cover it (this review is compulsory now that you are pregnant by the way). Not sure about that, I think covering the trip to work might be pushing it a bit far!

And please remember just because you havent signed a contract doesnt mean it cant be applied. Not sure all the rules with this, but someone here should be able to clarify it.

Pregnant ladies have quite a few rights. Make sure you know them. Sounds like your employer isnt quite up to speed with HR stuff so be careful and get proper advice. CAB would be useful for you i suspect.

As for the employer giving a verbal for having a miscarriage - im astounded.

Hi there, oh no I wasnt given a verbal for the miscarriage, I was given a verbal about 7 months prior to this happening...sorry if I did not explain that very well.

Thank you very much for your comments, its pretty much what I have been thinking. I have called a couple of law advisors who have said the same thing in that they cnt have it both ways using my abscence against me from the last two years but then stating that I cant use previous employment towards maternity pay.

I dnt think it is Tupe because the company was not sold to a new owner, it is exactly the same person who owns the company and opened it under a new name, probably why it states in the contract that we previous service with another company does not apply.

To be honest its not the maternity pay that bothers me, that I can work round, its the feeling of being made to feel unsafe.

The law advisors did say that just becuase my contract has not be signed yet does not have any relevance and companies actually have up to two months to supply you with written confirmation of your contract which they are still within and that I should no worry about it as you too have kind of said.

I am ringing my CAB tomorrow when they are open to get seom more advice. xx

 

[Babybear1985]

Bovine makes an excellent point. They cannot disregard your previous length of service and at the same time use information from this time. In reality if they are a phoenix company (in other words, the same people in a new company in the same industry) they cannot hold onto your personal records, this would be in breach of the data protection act. The only information they are allowed to use from the old company is the length of time you were employed for, the number of days you were absent and if you were dismissed. As the two companies most likely did not overlap in existance they cannot even use this information as Company A would not have existed to pass this information to Company B.

Can I ask what your job was and what industry you worked in? This is important if your job was tied to a contract that the company had won because TUPE (Transfer of Undertakings, Protection of Employment) would apply if the contract was transfered to Company B. If TUPE applies then your length of service is transferable as is your pension agreement. Although I'm not especially confident that TUPE does apply in this case.

Can you confirm that a new LTD company was actually formed and not just a name change? Was the previous company wound-up and struck off from companies house?

You can check this here...

I would also add that ACAS would be a good avenue to explore for advice.

Hi there, thank you also for your reply you have been really helpful. firstly you are the 2nd person to mention a "Phoenix Company" to me since I have been researching this, this is exactly what they are, the same company with the same people doing the same thing. I have tried to look on the companies house but it is down at the minute but I will definately check. As far as I am aware Company A was closed on the 16/08/10 and Company B was opened 23/08/10 which left a week in between where I was meant to be unemployed...but i was still working? this is all rather confusing. I got a P45 from the old company and a new contract to sign.
The company is internet advertising services, I would prefer not to go into too much detail as nothing has yet been set in motion I am just trying to find out my rights before they do

Sorry just looked again and from what I can see Company A is in liquidation? Company B is there as a current ltd company

Any more advice would so much appreciated.

Thank you xx

 

[kulture]

Did they pay you for the missing week. Did you actually work that week, or on paid holiday?

I suspect that if you have a payslip for that week they would have very little chance of saying it is not continuous employment.

 

[sjbeale]

Sounds like you have a great employment tribunal case for failure to consult under TUPE (business transfer legislation), failure to adhere to TUPE, maternity-related discrimination and who know what else. If you would like support to take this further with the company before considering an ET claim please pm me.

 

[yorkshirejames]

As far as I am aware Company A was closed on the 16/08/10 and Company B was opened 23/08/10 which left a week in between where I was meant to be unemployed...but i was still working? this is all rather confusing. I got a P45 from the old company and a new contract to sign.

A recent appeal case (Wood v Caledon) confirmed that even if there was a gap, that continuity under TUPE still applies. You are right to not sign the new contract. You appear to have a very good case.

 

[Employment Law Clinic]

I can only offer my opinion based on my knowledge, Karl will be along soon to advise you properly.

Thanks Bri, been a bit slow for the last week – jet lag.

Upon moving to the new offices a week of so later I recieved a P45 and a new contract to sign which stated that any previous service of emplyment would not count towards the new contract. Seeing as its a new company that kind of figures. However I then go on to find out I am pregnant and expecting at the same time as being given this new contract to sign. I refused to sign it upon the basis my previous service for company "A" was not counted and it means I would not get maternity pay any longer.I took this matter to my operation manager who advised me that they will honour maternity pay and she was looking into how to do this and would get back to me in which I replied i am not under any signed contract and she agreed that i was not at this moment in time.

If you are otherwise content with the contract, you can sign it – the law will prevail over the contract, and therefore if TUPE applies, your previous service will count. (Employers might think they can have things their way based on the agreement of the employee, but the law will override what is agreed between the parties in an employment contract. Hence, it makes sense to get professional advice when dealing with changes to contracts.)
The P45 is meaningless in terms of your continued employment, it simply recognises that the employer is now taxing you under a different company.

Further to this matter I have had to take about a week off sick with pregnancy related illness since August 23rd and have found out that the company are looking into my absence from the last two years, I have a feeling they are going to try and get rid of me...

The employer can't take disciplinary action for maternity-related absences. Nonetheless, if they want to review the absences (except the maternity-related absences) for the previous two years, you shouldn't resist this – any documents issued to you will establish that there was continuity of employment!

I have requested for my hours to be adapted or to work from home which I would be able to do only to be shot down and told no? Ant help with that one lol xx

Have you made a proper application? See Direct.gov for some guidance. The employer has to follow certain procedures following a formal request, and if they haven't, you can complain to an employment tribunal.

I know from readin this forum alot of businesses see pregnant women as basically a pain the backside

For a lot of businesses, they are! The law still needs to be complied with though.

I dnt think it is Tupe because the company was not sold to a new owner, it is exactly the same person who owns the company and opened it under a new name, probably why it states in the contract that we previous service with another company does not apply.

TUPE would still apply regardless of who the previous owners were.

The law advisors did say that just becuase my contract has not be signed yet does not have any relevance and companies actually have up to two months to supply you with written confirmation of your contract which they are still within and that I should no worry about it as you too have kind of said.

The law advisors you've been talking to aren't very good! If TUPE applies (and I believe it would – see Yorkshire James' post for breaks in service, which didn't even apply here), the new "statement of particulars" must be provided within one month – s4(3) of the Employment Rights Act 1996.


Karl Limpert

 

[Bri]

Any update forthcoming?