waiting to hear from HR on Friday

General_Grant

Undervalued said:

frogga said:

They have just replied. They will not allow him to work elsewhere while he is on 'garden leave'. He will not be given his P45 until 6th August. If he gets a job with anyone else they will release him from the 12 weeks with no more pay.  So, hopefully another suitable job will come along once August is here, but either way he isn't going to lose that 12 weeks pay.

That at least is clear cut and a position they are entitled to take, particularly if they are calling it garden leave. In theory he could be called in at any point during the "garden leave" and be asked to do anything that he is medically fit to do, He remains an employee until his leaving day and continues to accrue holiday. 

They can't of course call him in to work if he is signed off sick by his doctor.

They can instruct him to take the accrued holiday during his garden leave (but obviously can't call him in to work when he is on holiday).  Don't remind them though as if they forget to tell him to take the holiday they will have to pay him for it after he leaves!

During the 12 weeks (and for three months after his leaving day) you can consider if there is a valid claim to be made for unfair dismissal, because they failed to make adjustments that would have been reasonable!!!

It is just possible that the contract includes that holiday is taken during "garden leave" if such circumstances are mentioned in, for example, a staff handbook.

Savvy_Sue

General_Grant said:

If the new employment is continuing after the termination of the original job and he hands over a P45, there's no need to get the tax code changed.  The tax code should then be applied to the new employment and there is plenty of time left in the tax year for everything to be corrected and could initially lead to a tax refund via PAYE. 
[SS - But perhaps you meant that the new employer would be applying BR initially and would then apply whatever is on the P45, which is what would happen. - GG]

Yup: until the P45 arrived, Mr Frog would be saying that he had another job as well as this new p/t job, so new job would use BR. That would look like a LOT of tax, but once it became his only job, the tax code from the P45 would be used. He wouldn't pay more tax than was due just because he started one job before finishing the other. 

theoretica

I think I remember you mentioning some funny way his pay is worked out when discussing bank holidays - with a low base and then allowances on top.  I rather suspect you might need to be prepared to fight for his average pay, not the low baseline.

frogga

yes you must have read my mind, I have emailed already to ask them what they are stating is his 'average pay'. The good thing in our favour here is that if you recall they recently paid him 16 days holiday, and the average they used was acceptable to us as it was an average of his last 10 weeks earnings before March last year. So, they would struggle to give him anything different from that. However, we know what they are like, so yes, I am preparing for an issue here too 

sammyjammy

What  very disappointing response from them.  After all the years he has worked for them they seem to have spat their dummy out.  I'll bow to Undervalued's knowledge on the working for another employer (under the part-time terms of the fit note/OHS but it seems so wrong!
I think on the subject of ESA if he reverts to full time pay then he should let them know.  It maybe that they just suspend his claim for the 12 weeks so it can continue afterwards until he gets new employment.

frogga

Thanks SammyJammy, I just emailed ESA to let them know the latest as I dont want to be greedy or get into trouble

xxxx