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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 44941
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Hi, I requested 2wks A/L as I was having elective surgery (cosmetic)

Customer Question

Hi, I requested 2wks A/L as I was having elective surgery (cosmetic) this request was accepted. On day of surgery I was I'll & had to postpone the surgery & a new date was arranged for 5wks later. I informed my manager immediately of new date & verbally asked if I could request another weeks A/L to be added to the 1 i'd requested for this period. This would mean I'd use 4wks pro rota of A/L, manager informed me that as it would mean paying agency staff to cover head office would go mad as agency bill was large already due to 2 nurses leaving. I pointed out that when ever I took leave they'd have pay agency to cover plus I would actually be unfit for work so that would be 2wks sick & 2wks A/L they would have to cover plus initial 2wks as they said I had to take the leave as agency already booked & they couldn't cancel. This discussion went on up to the week prior to op, when I was informed I wasn't going to be given the A/L & I would have to rearrange op again, I made clear I wasn't happy but said I would enquire what next date available. This I did & it would be another 2mths so I informed manager that was not prepared to cancel & would be going ahead as planned & I didn't mind taking unpaid leave instead of A/L, she said this was still not an option, so I suggested that I'd get an unfit for work notice & again said happy to take it as unpaid sick leave. Manager said I couldn't do this & if I did I would be facing disciplinary action which may lead yo termination of employment, I also pointed out that I was contracted to 22hrs a week & had already worked over my months has doing 47hrs, 45hrs & 31hrs all that had been put on rota before I had been asked, just assuming I'd work them. She said this had no bearing on time off. Unfortunately 2nd date got cancelled & rescheduled for 2weeks later, I put a written request in for unpaid sick leave same day again I have been told no, will have to cancel & as its cosmetic not medical they don't have to allow me the time. I said but I'm on A/L the week op is due & after op I wouldnot be fit for work, manager said I couldn't have sick time/pay as I had made myself unfit to which I replied I wasn't asking for pay, she said yes but now you're asking for 3weeks not the original 2 & no way could she agree, she said she'd been more than fair trying to accommodate my request & I was being unfair to her, my colleagues & residents & that I should at least think about meeting her half way. ! I wanted to reply if she'd agreed leave in 1st place & cancelled when I didn't need it they'd only need cover for 2wks not the 5wks as it is now. ! She said could I think about cancelling & rearrange for July when she will allow me any 2weeks as A/L I want & can I let her know next time I'm on shift, I simply shrugged & left office. I'm due into work tomorrow when she will expect an answer, it will be the same as I've already given - I'm not prepared to cancel & will have planned surgery next Fri 20th June. Can she sack me ! Can I add due to lack of staff I was unable to take 2wks of my A L which hasn't been carried over nor have I been paid, as only nurse on duty I cannot leave building but don't get paid for the breaks I should take but very rarely do, I'm also a smoker, & i'm usually still at work for at least an hour every doing paperwork that I am professionally bond to do & don't get paid for this time either. Hope all this makes sense & hopefully you'll be able to point me in right direction. I have brought all the above to managers attention on several occasions
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.

Ben Jones :

Hello, my name is Ben and it is my pleasure to assist you with your question today. How long have you worked there for?

JACUSTOMER-q354izo4- :

2years

JACUSTOMER-q354izo4- :

2years

JACUSTOMER-q354izo4- :

2years in July

Ben Jones :

When exactly did you start working there as it would affect your rights?

JACUSTOMER-q354izo4- :

I think it was 15th July 2012

Ben Jones :

Do you have a notice period in your contract and does it say your employer can pay you in lieu of notice?

JACUSTOMER-q354izo4- :

Sorry just thought of something else, I have not signed a contract yet as I moved from one care home to work at another owned by same people but refused to sign new contract as rate of night pay was approx £1 less which I had not been informed about plus when I'd covered shifts I'd been paid the higher rate

Ben Jones :

So did you start at the present care home 2 years ago and worked for the other one before that?

JACUSTOMER-q354izo4- :

No started at care home A in beginning & was 'strongly encouraged' to move to current home B after 7mths after it was said there were personality clashed with another staff member but they did recognise that this person was hard to get on with. So started working for company July 2012

Ben Jones :

ok and even if you did not sign the contract - Do you have a notice period in that contract and does it say your employer can pay you in lieu of notice?

JACUSTOMER-q354izo4- :

Sorry for disappearing yesterday, lost internet connection then children arrived home once was back on-line. ::(

JACUSTOMER-q354izo4- :

As far as I'm aware I would have to give 4wks notice if I was to leave, have asked for a copy of contract from PA & have asked a coworker to check her contract re: pay in lieu of notice but she said thought that they didn't.

Ben Jones :

Hi, thanks for getting back to me. The main issue you will have here is that if you have been continuously employed at your place of work for less than 2 years then your employment rights will unfortunately be somewhat limited. Most importantly, you will not be protected against unfair dismissal. This means that your employer can dismiss you for more or less any reason, and without following a fair procedure, as long as their decision is not based on discriminatory grounds (i.e. because of gender, race, religion, age, a disability, sexual orientation, etc.) or because you were trying to assert any of your statutory rights (e.g. requesting maternity/paternity leave, etc.). Cosmetic surgery would not fall within any of these so there would be no question of discrimination which you can rely on.

If the dismissal had nothing to do with any of the above exceptions then you would not be able to challenge it and your only protection would be if you were not paid your contractual notice period, because unless you were dismissed for gross misconduct, you would be entitled to receive your contractual notice period.

It is also important to note that the employer has the right to refuse a request for annual leave and even force you to take leave when they want. So if you have made a request to take A/L on a specific date, the employer can legally say no and expect you to be in work at the time. They do not have to justify their decision or provide reasons for the refusal. Also whilst you may be signed off sick for the period, in the circumstances this could have been avoidable because it was elective surgery and you were specifically told that you would be expected in work, so it was not emergency or essential surgery which was unavoidable and as such could be treated as misconduct or unauthorised absence from work, which could allow the employer to discipline you.

If the dismissal happens in the next month then you could be dismissed without being able to challenge it. If they dismiss you once you have hit 2 years’ service with them, they could still dismiss but they must be able to justify that the dismissal was fair and that there was a fair reason for it.

Hope this clarifies your position?

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