Sent home without pay - law?

[BJG1]

Hi all,

Posting this on behalf of a work colleague - his girlfriend has lost her voice (no throat infection, nothing contagious) She phoned in (presumably he did for her) and asked if they wanted her to come in, as she was happy to. She was told yes, then subsequently sent home 2 hours later and told not to return until she had her voice back. This is without pay. She is a hairdresser and their argument is if she can't talk to clients she's not able to do her job. I'm really not sure the law is on their side here - it seems a weak argument that she isn't fit for work, there are no health and safety issues. Has anyone had this issue before or know whether what they're doing is legal? She's employed full time for the record, but hasn't yet been given a contract in the 4 months since she started.

[blindswelledrat]

Depends on a couple of things significantly whether she is self employed.
In the absense of a contract then this depends on loads of factors like any verbal agreement, whether she has her own 'tools', whether she is expected to work specific days or whether she can work when she wants.
Basically is the relatioinship between her and the emloyer the same as any other 'employed' relationship or is it more like a self employed one?

She's on a hiding to nothing really though because even if she is an employee the most they would have to pay her is Statutory Sick Pay which is a low amount.

I am not a solicitor.

[BJG1]

Let's assume she is definitely a full-time employee. My main question is do they actually have to only pay SSP? She's not ill, she doesn't want to be sent home from work and she's not incapable of doing her job as a result of barely being able to speak.

[softtop]

there will be more to this than meets the eye. PIcture the scene, you are the employee of the month/year and this happens are you A, sent home or B, told to do your best as you usually do???

[Eric Mc]

Hairdressers often operate on a self-employed basis. They don't get paid a salary and actually pay the proprietor of the establishment a "rent" for the use of the chair.

Is that the case in this circumstance?

[blindswelledrat]

BJG1 said:

Let's assume she is definitely a full-time employee. My main question is do they actually have to only pay SSP? She's not ill, she doesn't want to be sent home from work and she's not incapable of doing her job as a result of barely being able to speak.

No idea I'm afraid.
My gut feeling is if they sent her home, leaving themselves short-staffed then they probably had a valid point and would be fair to label it 'sick'.
Similarly, if she came in with a nasty cold but said "I can still cut hair just fine" they would still have a valid point saying "but the customers wont want you having a cold around them".

So in short, it seems pretty unfair, but probably perfectly alright.
Its a matter of opinions as to whether they were right or wrong to send her home and the bottom line is that neither your or mine counts, only an emplyment tribunal if she wanted to take it that far, which Im sure she doesnt

Edit: To answer your question categorically, though: If an emplyment tribunal ruled that it was unfair to send her home as 'sick' and that she was indeed an employee then they would have to pay her at her full rate.
However they probably wouldn't and she probably isnt.

Edited by blindswelledrat on Tuesday 14th December 15:19

[BJG1]

Eric Mc said:

Hairdressers often operate on a self-employed basis. They don't get paid a salary and actually pay the proprietor of the establishment a "rent" for the use of the chair.

Is that the case in this circumstance?

No she doesn't rent a chair, she's a full-time employee.

[Tyre Smoke]

Morally, they should pay her. Legally they don't have to.

I employ my drivers, deduct their tax and NI, etc. I refuse point blank to pay sick pay. All I am obliged to pay is SSP after 3 waiting days. Even this can be reclaimed from HMR+C. It is the most effective way I know of controlling staff absence.

If she has lost her voice, she must have an infection. Unless she had her voicebox removed. If she has an infection, she may be contagious. I would have probably done what her employers did.

[Eric Mc]

BJG1 said:

Eric Mc said:

Hairdressers often operate on a self-employed basis. They don't get paid a salary and actually pay the proprietor of the establishment a "rent" for the use of the chair.

Is that the case in this circumstance?

No she doesn't rent a chair, she's a full-time employee.

That's OK. What does her employment contract say?

[Eric Mc]

Then I don't think sick pay needs to be made - apart from Statutory Sick Pay.