Termination of employment due to ill health

SarEl

getmore4less wrote: »

Does the fact the the hours were increased to the 20 from lower numbers over a period introduce the posibility that this could be conisdered a variable hours situation and the weeks pay be averaged over the previous 12 weeks of paid work? Possibly and I considered this - but it would not be in the OP's interests to argue this point as she was building up her hours and this calculation would reduce her average pay from the point that the variation had been agreed!

Or is this just a series of changes to the contracted hours.

Or does it depend on the wording of the return to work agreement.

In response to the last two points - a phased return is a "flexible" variation of contract. So unless the OP had no intention of returning full-time (which she hasn't indicated) it would have built up to full-time over a period, but unfortunately the contractual variation halted mid flow. That is the "measuring point" for final salary.

I see no reason why the OP cannot "chance her arm" by quoting the legislation - few employers would understand it and unless they have legal advice available they may not realise. But there are risks involved which is why I did not mention it previously - because making such a payment based on a misinterpretation of the law would be an error in payment. And we all know what often happens next - six months down the line the OP ends up with a demand for repayment which she cannot afford to repay. So if the OP were to try this route and it worked she could not confidentally be clear of the risk for six years. And that is a long time for an axe to be hanging over your head.

Uncertain

SarEl wrote: »

So if the OP were to try this route and it worked she could not confidentally be clear of the risk for six years. And that is a long time for an axe to be hanging over your head.

Presumably if whatever settlement is reached is formalised in a compromise agreement then that is final even if the employer "screwed up" their sums?

SarEl

Uncertain wrote: »

Presumably if whatever settlement is reached is formalised in a compromise agreement then that is final even if the employer "screwed up" their sums?

Yes, but I wasn't aware that the employer was offering one.

Emplawyer

Post 2:

custardy wrote: »

you were working PT,but were you still on FT contract and wages?

Post 3: Quote:
Originally Posted by mia123
Yes my contract didn't alter.

SarEl - is that clear enough for you? And why do you always have to be so bloody rude?

So the OP was asked if she was still receiving FT wages while working PT, and said yes. Obviously if she wasn't then you are right about the variation in her contract, but if she was, then the FT wages are payable would you agree?

SarEl

Emplawyer wrote: »

Post 2:


Post 3: Quote:
Originally Posted by mia123
Yes my contract didn't alter. This does NOT say that she was receiving a fulltime wage - NO WAY, NO HOW. You claimed it did. It doesn't. She was incorrect about her contract not changing - as I have explained now on three occasions. Simply because she didn't realise it had changed does not make what she thinks the law. But at no point here or elsewhere did she ever say her wage did not change - in fact she said the opposite.

SarEl - is that clear enough for you? No, because that is not what it says. She was receiving a wage for 20 hours per week which is what she was working. How on earth can you continue to deny this FACT when the OP themselves has CONFIRMED it?

And why do you always have to be so bloody rude? Where in my post was I rude. I didn't swear - which you just have. I simply pointed out that the statement which you made based on a post which you quoted was factually incorrect, and continues to be factually incorrect despite your efforts to claim otherwise. At no point did she EVER say that she continued to receive full-time wages - this was an assumption which you made based on no evidence. You then continued to ignore all of the evidence (like her actually saying that she was being paid part-time, that the employer had calculated her notice pay based on the part-time wage she had been receiving, etc etc,) for the following 2 pages of posts. The fact that the OP kept on saying she had been paid for 20 hours per week was a big give-away that she was being paid for 20 hours per week.

So the OP was asked if she was still receiving FT wages while working PT, and said yes. No, she didn't. She said that her contract had not changed, which was an incorrect assumption on her part. But given the she is not a lawyer I wouldn't have expected her to know the law. I only expect lawyers to know the law. But I expect most people to know that employers do not pay full-time wages when someone is working part-time.

Obviously if she wasn't then you are right about the variation in her contract, but if she was, then the FT wages are payable would you agree? Why on earth would I agree - the only person here who is speculating on what happened appears to be you - everyone else seems to have found the information she gave pretty clear.

Why on earth do you continue to insist that you are correct when you are patently incorrect and the evidence is here for all to see?

Exactly what kind of employment lawyer are you? This is the fourth or fifth error in basic employment law that you have made in the last week. Whilst I happily admit that any of us can make an occasional error or misunderstand a post, especially in some of the basic law that some of us seldom use because it is so simple that we never get asked the question and certainly never have cases based on it, the regularity of your errors in just a handful of posts is concerning.

I am not the only person here who has assumed that your user ID is meant to indicate that you are an employment lawyer, but I am seeing precious little evidence of it. Certainly the ID seems designed to give posters a sense of confidence in your opinions which, frankly, I cannot see is warranted on current performance.

The OP asked for my opinion - personally and directly. I have given it, and it is an opinion which I would stand by in law.

Sambucus_Nigra

mia123 wrote: »

Should my notice pay be paid on the f/t wage or the p/t wage as the act says full pay.

Just quoting the bit where the OP says she WASN'T receiving a F/T wage....to help 'Emplawyer' in their 'observations'.

getmore4less

THese were the first 3 posts

mia123 wrote: »

Emplyment terminated on grounds of work capability due to long term ill health.
Employed f/t 8yrs.
When signed off i was working p/t 20hrs 5 days p/w.(This was because i had had a previous sickness period where i had been allowed a phased return to work thus building up to 20hrs)
My questions are:
Am i right in thinking that i am entitled to all holiday pay accrued during my absence plus one months pay in lieu of notice.
Should the final pay out take into account any increment that there may have been during my ansence.
Should the final pay out be based on my f/t or p/t pay ( as i was only working 20hrs p/w when signed off)
Can i ask for a break down of the final pay out.

Thanks

custardy wrote: »

you were working PT,but were you still on FT contract and wages?

mia123 wrote: »

Yes my contract didn't alter.
I was working only 20hrs at the time as this was a phased return to work with the hope that i would build up to f/t hrs.Unfortunately i had a relapse so was signed off.

thanks

It is not 100% clear but I think the op was responding positivly to the question in post 2 about being on fulltime wages.

Needs clarification by the OP on what they were actualy gettiing paid

Emplawyer

Sambucus_Nigra wrote: »

Just quoting the bit where the OP says she WASN'T receiving a F/T wage....to help 'Emplawyer' in their 'observations'.

You'll have to help me here - exactly where in that sentence does it actually state that she WASN'T receiving a FT wage?

Emplawyer

getmore4less wrote: »

It is not 100% clear but I think the op was responding positivly to the question in post 2 about being on fulltime wages.

Needs clarification by the OP on what they were actualy gettiing paid

Thank you. So not everyone has jumped to the opposite conclusion then. It is quite common in some sectors eg teaching, civil service, for phased returns to be arranged based on full pay.

KiKi

Emplawyer wrote: »

You'll have to help me here - exactly where in that sentence does it actually state that she WASN'T receiving a FT wage?

Here in black and white:

"Should the final pay out be based on my f/t or p/t pay"


Here by implication:

"So it seems that they should be working the final pay on my f/t salary." (ie, I'm not on the f/t salary at the moment)


Here:

"Should my notice pay be paid on the f/t wage or the p/t wage" (bolding mine)



Either way, please answer SarEl's question about whether or not you are an employment lawyer. Your User ID *is* designed to imply you are, and if not, have the guts to say so rather than ignoring the question. If you are an employment lawyer, then there's no problem saying so.

It may be quite common in some sectors for phased returns to be done on f/t pay, but as an employment lawyer you would have known a) not to assume that, and b) that Mia saying her contract hadn't changed wasn't the case.

KiKi