No Contract, Medically Suspended and No Pay

RiaMac_2

Have been employed since August 2009 but have not received a contract. When I asked for it in December 2009 I was told changes were being made to the contracts and when this was done I would receive it. I still haven't. Is there a time limit for the employer to provide a contract? In my pre-employment medical I disclosed that I took seizures in my sleep but they were controlled by medication. In September I took 2 seizures in a week and although this would not have impacted on my ability to do my job I did not feel comfortable doing sleepovers. I was medically suspended on full pay until it was deemed I was fit for work. I attended an Occupational Health assessment a week after being suspended. In September I only received payment for the shifts I worked and one week medical suspension. My employer did not contact me regarding returning to work until November. I have not been paid since September as they say I was AWOL. Went back to work last week and should be due to be paid this week. Employer has not replied to my letters asking whether or not I will be paid for October and November, nor have they acknowledged or responded to a list of grievances I have. I have had enough and want to leave but in the absence of a contract am not sure how much notice (if any) I would have to give. Also think it might be wise to wait until after pay day. What does everyone else think? Would non payment of wages be grounds for constructive dismissal or do I need to go through the Grievance Procedure? Do I still have to be employed by them when going through this procedure? Live and work in Scotland, not sure if this makes any difference.

Would appreciate any help and advice. Many thanks

Emmzi

have you handed in doctors certificates for the time you have been off and what did these say you were able/ unable to do?

RiaMac_2

My employer suspended me on medical grounds until such time as I had seen Occupational Health. They said I would be on full pay until I went back to work. As they suspended me I did not need any sick line from my GP. Although I saw OC a week after being suspended my employer did not contact me until about 5 weeks later and then only to complain I had not been in contact with them (which I had)!

SarEl

Yes, I am afriad there is a lot of information missing here. You say that you were not comfortable doing sleepovers, but did your doctr actually advise this? And after the OH assessment, were you told to refrain from work? You certainly cannot claim constructive dismissal unless you go through the full grievance procedure - and it wouldn't be something I would advise anyway since less than 3% of such cases win anyway. There are far too many questions about this and gaps in the information - like what your employers said about returning to work, what they have said about the missing period etc. But whilst there may be a claim for unlawful deductions (and that isa may because there is too much that we don't know) I wouldn't recommend attempting constructive dismissal without going through the grievance procedure and taking legal advice.

SarEl

RiaMac wrote: »

My employer suspended me on medical grounds until such time as I had seen Occupational Health.

So they medically suspended you until you saw OH - why did you not then go back to work?

RiaMac_2

Sorry, I know there is a lot of info missing but I was afraid that I would ramble too much and people would get bored reading my post! As I was really needing advice I thought I could maybe just give more info as it was needed.

I was told that as my job involved sleepovers I could not return to work until OH had said it was ok. Even then the company may not want me to continue doing sleepovers and may just let me do day shift. On the day my boss sent me home she said that until I had seen OH, HR had received OH's written report and HR decided whether or not I could return to doing sleepovers I would be medically suspended on full pay. As I work shifts I had to wait to find out when I should return. I contacted HR 2 weeks after seeing OH and was told they would contact me to arrange a meeting to discuss a risk assessment and a return to work date. I heard nothing from them and then I noticed I had not been paid. I emailed them about this and they said as I was AWOL I would not be paid. I told them what my boss had said and sent an email. They did not reply to this but sent another letter to say they (HR) had arranged a meeting between me and my boss. When I arrived for this she was totally unaware that a meeting was to take place. She also said that she did not need to meet with me to discuss a risk assessment as she already had all the information she needed. All that was required was a copy of the OH's report from HR and a risk assessment template, again from HR. I have now returned to work but am not happy at how I have been treated and the non payment of wages.

Any other info you need I will happily give.

SarEl

Well then, it would appear that HR screwed up here so you should put in a grievance based on these facts and the evidence you have that you were told not to return until summoned from medical suspension, and that you were not AWOL, so this is an unlawful deduction of wages. If you simply quit you should not do so without specific legal advice to do it.

RiaMac_2

Thanks SarEl, I really appreciate your help. Where do I stand in relation to not having a contract, how much notice do I need to give? Also must I still be employed while going through the grievance procedure? I have a feeling it might be easier to get the money owed to me while still working for them.

Morty_007

I *think* the fact that you have been paid month in month out is sufficient to imply a contract...even if they have not given you anything in writing. I would seek union advice or legal representation on that part of your concern. Hope this helps, even just a little.

RiaMac_2

Many thanks Morty_007. I will seek further advice from my union rep. I was paid monthly, as you rightly point out. However would this not suggest a rolling monthly contract rather than a permanent one? As I was not paid in October or November would this imply that they had terminated my contract? I have now decided that I must leave but as I have nothing in writing to say how much notice I need to give I am concerned that if I only give one weeks notice they will hold this against me at any formal proceedings and I don't want to have to work 4 weeks notice if I don't need to.

SarEl

If you have no written contract then the statutary conditions apply unless they can demonstrate implied terms - but if you are in a union why haven't you had then involved previously? Surely they could have got this resolved long ago? I still think that resigning when you have no job to go to is shortsighted, because if this can be cleared up then it may not be a problem - it may be down to miscommunication or misunderstanding between HR and the employing site.