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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 70260
Experience:  Qualified Solicitor
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My wife was sacked for falling asleep for 2 minutes at work

Customer Question

Hi, My wife was sacked for falling asleep for 2 minutes at work whilst on a night shift. She works a 11 hour shift with no official break. Is this aloud?
JA: Has your wife discussed this with a manager or HR? Or with a lawyer?
Customer: Not yet, as she worked for a disabled man in his own home, so no manager or HR.
JA: Does the workplace operate with employees, freelancers, consultants, contractors or with unionised employees?
Customer: He has several employees that look after him, thats it.
JA: Anything else you want the Lawyer to know before I connect you?
Customer: No thank you
Submitted: 9 days ago.
Category: Law
Expert:  Ben Jones replied 9 days ago.

Hello, I’m Ben. It’s my pleasure to assist you today. I may also ask for some preliminary information to help me determine the legal position.

Expert:  Ben Jones replied 9 days ago.

How long has she worked there for? Please note this is not always an instant service and I may not be able to reply immediately. However, rest assured that I am dealing with your question and will get back to you today. Thanks

Customer: replied 9 days ago.
No problem
Customer: replied 9 days ago.
She has worked there for around 18/19 Months.
Expert:  Ben Jones replied 9 days ago.

Many thanks for your patience. The main issue is that as she has been continuously employed at her place of work for less than 2 years then her employment rights will unfortunately be somewhat limited. Most importantly, she will not be protected against unfair dismissal. This means that an employer can dismiss her for more or less any reason, and without following a fair procedure, as long as the decision is not based on a reason which makes a dismissal automatically unfair. These include:

· Discrimination due to a protected characteristic (i.e. because of gender, race, religion, age, disability, sexual orientation, etc.)

· Taking, or trying to take, leave for family reasons including pregnancy, maternity leave, parental leave, adoption leave or leave for dependants

However, if the dismissal had nothing to do with any of the above exceptions, she would not be able to challenge it. In that case her only protection would be if she was dismissed in breach of contract. That would usually happen if she was not paid any contractual notice period due to her (unless she was dismissed for gross misconduct, where no notice would be due). If she did not have a written contract in place she would be entitled to the minimum statutory notice period of 1 week. The employer would either have to allow her to work that notice period and pay her as normal, or pay her in lieu of notice, where she is paid for the equivalent of the notice pay but her employment is terminated immediately.

In terms of the breaks, usually a worker is entitled to 20 minutes for every 6 hours of work, but there are certain exception and care work is one. It does not mean she is not entitled to breaks but it does mean there are times when the nature of the work means she won’t be able to take the usual breaks and if that happens it won’t be unlawful.

Does this answer your query?

Customer: replied 9 days ago.
Hi,
Thank you for getting back to me. I understand her breaks would be different to any normal job, but there has been no set time throughout the 11 hour shift where she was given a break.
On another note, my wife has 2 part time jobs, the other one being that she cares for another gentleman in his home in the day time. She has been working for him for around 15 years, and has recently been given her notice for redundancy as his care package has change and he requires someone to care for him 24 hours a day and this is something my wife us unable to do, due to us having 3 children and i work full time. She has no contract of employment and been given a month's notice from her employer. Is she entitled to any redundancy pay?
Thank you
Customer: replied 9 days ago.
The gentleman she cares for gets payment from direct payments which he uses to employ carers to look after him, she gets wage slips each month and pays her tax and n.i.Thanks
Expert:  Ben Jones replied 9 days ago.

Yes she should get redundancy as basically her job, as it is now, is being made redundant and he has created a new role, with longer hours, which she cannot do. On that basis she should be made redundant and due redundancy pay.

When someone is made redundant, they will be entitled to the following payments by law as a minimum

{C}· Notice pay for the contractual notice period which must be at least as long as the statutory entitlement (1 week’s notice for every full year of continuous service, up to a maximum of 12 weeks)

{C}· Statutory redundancy pay, which you can calculate here: https://www.gov.uk/calculate-your-redundancy-pay

{C}· Any accrued holiday pay for untaken holidays in the current holiday year

Does this clarify things a bit more for you?

Customer: replied 9 days ago.
Thats great. Thank you
Expert:  Ben Jones replied 8 days ago.

You are most welcome

Customer: replied 8 days ago.
Does it not matter that she did not have a contact of employment?
Thanks
Expert:  Ben Jones replied 8 days ago.

No, that does not change her rights above

Customer: replied 8 days ago.
Thank you very much for your help today.
Expert:  Ben Jones replied 8 days ago.

You are most welcome