Termination of employment due to ill health

Googlewhacker

I think...

Did you amend your contract to work part time or was the part time as part of a graduated return to work. If it is the former and you requested the change to part time or if you accepted your employers request to go part time then your work are correct. If it is the latter and it was part of a return to work phase and you would have gone back to work full time if you could have carried on then it should be based on the full time.

tygr

I agree with Googlewhacker but I'm not an expert.

I returned to work after a long period of sickness and negotiated a temporary part time period with my employers. During that period, I was made redundant and everything was calculated on the basis of my full time contract, which hadn't been formally amended. So it depends on what basis the p/t hours were agreed I would imagine.

Emplawyer

Googlewhacker wrote: »

I think...

Did you amend your contract to work part time or was the part time as part of a graduated return to work. If it is the former and you requested the change to part time or if you accepted your employers request to go part time then your work are correct. If it is the latter and it was part of a return to work phase and you would have gone back to work full time if you could have carried on then it should be based on the full time.

Absolutely correctly and succinctly put! I was trying to find a short way of saying that and failing miserably!

mia123

The part time hrs were part of a phased return to work in the hope that i would of built up to f/t.
Is there any legislation i can quote.
Thanks to everyone I have got them to alter the notice pay to the amount of yrs served rather than one month.They apologised for this error.

Emplawyer

mia123 wrote: »

The part time hrs were part of a phased return to work in the hope that i would of built up to f/t.
Is there any legislation i can quote.
Thanks to everyone I have got them to alter the notice pay to the amount of yrs served rather than one month.They apologised for this error.

What you need to quote is your employment contract which requires them to pay your notice pay at the rate stated in the contract unless there has been an agreed change to it - you just need to point out to them that there has been no change to your contract.

This is all of course dependent on the precise terms of your phased return to work agreement, assuming that there was no change to your contract.

Uncertain

Emplawyer wrote: »

What you need to quote is your employment contract which requires them to pay your notice pay at the rate stated in the contract unless there has been an agreed change to it - you just need to point out to them that there has been no change to your contract.

This is all of course dependent on the precise terms of your phased return to work agreement, assuming that there was no change to your contract.

Indeed - this also (presumably) affects the amount of holiday pay they will have to give you too.

Overall this could make quite a difference so is worth getting right.

Emplawyer

Uncertain wrote: »

Indeed - this also (presumably) affects the amount of holiday pay they will have to give you too.

Overall this could make quite a difference so is worth getting right.

Yes you will need to check that they haven't worked out a lower pro-rata holiday pay entitlement using your part time hours.

mia123

Have received the breakdown of the final payment.They have worked out the holiday and notice pay based on p/t hrs.
I didn't sign any new contract.
It was just agreed that there would be a phased return ie one moring a week then two etc.
At the time of being ill again i had built up to 5mornings 20hrsp/w.
So it seems that they should be working the final pay on my f/t salary.
Would somebody help with the wording to email them?
Thanks

mia123

Would it be out of order if SarEl could take a look at this?

SarEl

The Employment Rights Act 1996, Section 88(1)(b) provides that an employee should be paid full pay for the statutory minimum notice period in cases where he or she is incapable of work because of being absent on ill health grounds, provided that the contractual notice period is not more than statutory notice (the law here is rather perverse - if contractual notice is a week or more longer then you can get nothing!).

However, the question that arises here is "what is full-pay"? Full-pay is not the same thing as "contractual pay". In these circumstances the same test applies as would in a redundancy - what would be the gross weekly wage at the time of termination? In this case the only possible way to answer the question would be to refer to the gross weekly wage paid at the last point at which the employee worked. This is the part-time wage - the phased return to work was a mutually agreed variation of contract. The employer is therefore correct that the relevant point to use for the calculation is the part-time hours, although any oustanding holiday which may have been accrued prior to the phased reurn are owed at the contractual rate, presuming the OP was working full time hours.

Is this a local authority (I noticed the reference to increments in your first post, which yes, should have been awarded if due)? If so, have your employers fully explored all other avenues rather than a termination of contract, such as ill-health retirement?