April Pay rise (backdated pay for all unfurloughed staff) - pregnancy rights????

kathynewbie09

Forgive me if something like this has already been posted.

I was put on the furlough scheme in June due to the fact that I am pregnant (I am being paid 100% of my wage since ACAS advised me that my employer would have to suspend me on full pay under section 16 (3) of the management of health and safety regulations 1996 if they couldn't find suitable alternative work or allow me to work from home so my employer said that I would be furloughed on full pay) (I'm sure that I have it in writing about paying full pay somewhere)

Yesterday morning I received a letter stating that all employees who agreed to be furloughed would not be paid the backdated payments of wages from the pay increase that they have just finished negotiating. Something seems a little off regarding this as I didn't agree to be furloughed, I was told that I was too high risk to be in the workplace and that I was being furloughed for my protection (I believe that I have this in writing somewhere too). They even admitted on the phone that if I wasn't pregnant then I wouldn't be a high risk so therefore I would not have been furloughed.

I am currently waiting for a staff member who is part of our Site Employee Forum (same rights and access as union but free) from my workplace to discuss this with my HR department because when I called about it I was told that it applies to all furloughed colleagues whether they agreed to be furloughed or not.

From my understanding due to the fact that I am pregnant my rights to pay increases, holidays etc do not change whether I am furloughed or not.

Is my employer breaching any laws with what they are planning to do? If so what can I do? Obviously I do not want to lose my job but I am not particularly happy to lose out on the pay increase backdated payment (works out to be around £405 dependent on when they finally process the backdated payments and could end up being more) when my employer should have just suspended me on full pay rather than putting me on furlough.

I have not been kept well informed of anything to do with the workplace and I only know about the pay negotiations ending and the backdating of the payments because my husband works for the same company but on the opposite shift. My workplace has also failed to inform me if I should stay furloughed on several occasions despite me asking them when I am expected to return to work. I had to redo the corona-virus risk assessment at the end of August and I still haven't been told whether I am deemed to still be at high risk or not under the new government guidelines.

Sorry for the long ramble I'm just feeling a little disgruntled that I have been kept out of the loop by my employer and I'm genuinely feeling a little bit lost in all the technicalities of the furlough scheme as everywhere I look it says that if you are furloughed you wouldn't be entitled to the NLW but there is very little information regarding being furloughed due to pregnancy and pregnancy rights.

unforeseen

Everything you say points to this being a medical suspension in reality and not furlough, especially as it is done under the auspices of H & S. 

Semple

The problem with salary increases is that unless you have it in your contract that you get an X% increase each year, it's solely at the discretion of the company.

You can't use the discrimination card here either as you've indicated that there were others who were also furloughed (assuming they weren't all furloughed due to pregnancy etc).

Do you not think your other colleagues who worked through the pandemic are worthy of a salary increase? I'm sure given your condition that you'd have preferred to have been on furlough rather than taking any sort of risk on employers premises.

Basically I don't think you've got much hope of overturning their decision. 

Grumpy_chap

I understand that, on a technicality, an employee had to agree to be furloughed.  In my wife's case, they sent her a letter that she and to sign and return.  If you received a letter and stopped going to work but accepted the payment, that could be seen as agreeing by default - the other options would have been to carry on going in regardless (and got sacked), or not agreed but not gone in (resigned or sacked).  Are you sure you did not agree to be furloughed, however much that was all in the mix of a very fast moving situation?

As for the back-dated salary increase, I think this would be permitted if it is on the basis of being furloughed.  Not permitted if it is on the basis of pregnancy.  How much would you lose by not having the back-dated salary increase?  6 months of a small rise?  Do you get the rise from now forwards?

Diamandis

If you didn't agree to be furloughed then you should have put that you were only doing this under protest or, alternatively, resigned. Accepting payment since June and not attending work is agreeing. 

epm-84

Grumpy_chap said:

As for the back-dated salary increase, I think this would be permitted if it is on the basis of being furloughed.  Not permitted if it is on the basis of pregnancy.  How much would you lose by not having the back-dated salary increase?  6 months of a small rise?  Do you get the rise from now forwards?

She mentioned £405 but it doesn't look like she's mentioned how much it would cost her to commute to work.  If her commute costs over £100 a month then I don't think it's worth bothering complaining about, if she walks to work then it's worth asking the question but I doubt she's legally entitled to any pay rise.  The only instance I can think of when an employee is legally entitled to a pay rise is if the minimum wage increases and their existing hourly pay rate is less than the new minimum wage rate but the government has confirmed as those on furlough aren't working they aren't entitled to the minimum wage anyway.

Even though an employer can't discriminate because of pregnancy they certainly don't have to give all employees the same pay rise unless it's written in to their contracts.  

epm-84

kathynewbie09 said:

From my understanding due to the fact that I am pregnant my rights to pay increases, holidays etc do not change whether I am furloughed or not.

As your employer tops up your salary to 100% while you're furloughed your holiday entitlement is pretty meaningless.  Employers can request that employees take their annual leave while on furlough and the only thing employees are entitled to in return is their pay being topped up to 100% and the fact that they can relax and make plans for those dates, rather than having to be ready to return to work on request.

Thrugelmir

An employer can decide which employees are put on furlough. There's no additional rights due to the fact that you are pregnant. 

kathynewbie09

Semple said:

The problem with salary increases is that unless you have it in your contract that you get an X% increase each year, it's solely at the discretion of the company.

You can't use the discrimination card here either as you've indicated that there were others who were also furloughed (assuming they weren't all furloughed due to pregnancy etc).

Do you not think your other colleagues who worked through the pandemic are worthy of a salary increase? I'm sure given your condition that you'd have preferred to have been on furlough rather than taking any sort of risk on employers premises.

Basically I don't think you've got much hope of overturning their decision. 

Of course my colleagues who worked through the pandemic are worthy of the pay increase although I also worked through some of the pandemic and the way that it sounded is that I will not get any backdated payment even though I worked from the pay increase until June. My colleague has spoken to the onsite HR and they have openly admitted that they did not take pregnancy into consideration when making this decision so they are going to contact their head office regarding that particular situation. If they pay me the pay increase for the time that I actually worked through the pandemic then I will be happy enough with that outcome.

kathynewbie09

Grumpy_chap said:

I understand that, on a technicality, an employee had to agree to be furloughed.  In my wife's case, they sent her a letter that she and to sign and return.  If you received a letter and stopped going to work but accepted the payment, that could be seen as agreeing by default - the other options would have been to carry on going in regardless (and got sacked), or not agreed but not gone in (resigned or sacked).  Are you sure you did not agree to be furloughed, however much that was all in the mix of a very fast moving situation?

As for the back-dated salary increase, I think this would be permitted if it is on the basis of being furloughed.  Not permitted if it is on the basis of pregnancy.  How much would you lose by not having the back-dated salary increase?  6 months of a small rise?  Do you get the rise from now forwards?

I will not get the pay rise until I return to work whenever they decide that will be. If they decide not to pay me at all I will be losing around £405 after tax between the NLW increase and September 4th if they keep me off until the end of October which is looking quite likely then I will lose even more if that makes sense. If they decide to pay me the increase for April, May and part of June then I will lose a little bit less but the letter is worded that I wouldn't get the pay increase until I return from Furlough which to me means that they are not paying for the hours that were worked. Only time will tell of course.

kathynewbie09

epm-84 said:

Grumpy_chap said:

As for the back-dated salary increase, I think this would be permitted if it is on the basis of being furloughed.  Not permitted if it is on the basis of pregnancy.  How much would you lose by not having the back-dated salary increase?  6 months of a small rise?  Do you get the rise from now forwards?

She mentioned £405 but it doesn't look like she's mentioned how much it would cost her to commute to work.  If her commute costs over £100 a month then I don't think it's worth bothering complaining about, if she walks to work then it's worth asking the question but I doubt she's legally entitled to any pay rise.  The only instance I can think of when an employee is legally entitled to a pay rise is if the minimum wage increases and their existing hourly pay rate is less than the new minimum wage rate but the government has confirmed as those on furlough aren't working they aren't entitled to the minimum wage anyway.

Even though an employer can't discriminate because of pregnancy they certainly don't have to give all employees the same pay rise unless it's written in to their contracts.  

I walk to and from work. It's about a 45 minute walk from my house. My employer has openly admitted that they hadn't actually taken pregnancy into consideration when making this decision so they are going to talk to their higher ups and go from there.