A backdated P45? Can it be legal?

[Waaii]

My niece has been off work for some time (with the appropriate medical certificates naturally) but has received no sickness pay from her employer during this time.She has now received a P45 backdated to the day she first went sick, she returned it, so did they. Can they (legally) do this. Obviously she will have to get CAB & professional advice but in principal, advice please.Tnx

[dzug]

If when she first went sick was the last time she was paid I would think that this is the correct date for the P45 to be dated.

Whether it was correct for her not to be paid is a different matter. Didn't she get SSP? Didn't she get tax refunds? If she did these would alter the amounts on the P45; if not then the P45 is (in tax terms) correct.

[Waaii]

Thanks, but what I am saying is can they now, in effect , terminate her employment backdated from the day she was taken ill rather than pay her sick pay?
No communication was sent with the P45, just that.

[dzug]

Unless there are any odd circumstances they should have paid her Statutory Sick Pay. I assume she had medical certificates (as you say) and filled in the SSP claim form on the back.

If there was a company sick pay plan that she was eligible for then they should have paid that.

[Waaii]

Yes that is what we thought, thanks for your help. But does the sending of the P45 constitute the ending of her employment and can that be backdated without consultation? It seems to me that, in effect, they are by backdating termination of her employment to when she went sick, trying to avoid being responsible for paying her anything since then .This leaves her moniless and jobless

[dot.hawkes]

You cannot terminate any one's employment whilst they are on certified sick leave unless there has been a full disciplinary procedure followed and that cannot be done whilst the person is away on sick leave. Unless she only worked there a few weeks and was still on a probationary period. If however it is a small organisation employing just a few people it is outside of the employment statutes I believe.

[dyli795]

I hope someone with more confidance and real knowledge will respond because although my knowledge and experience is limited, I have never known before why a P45 should pass from an employer to employee except in the case of termination of employment. I even think it's contrary to some regulation or other! -I know I'm not a lot of help, but it's summat to think about. Come on people! Bonefied answers please . . .

[Waaii]

You are confirming what I feel without my having much real knowledge of the law, thats why I asked. So yes please AB's do give well informed advice/help if you can. Thanks

[mangetoute]

while reading through the answers to your question i noticed to the right a web add for employment law www.legalpulse.com worth a go,good luck ,realy dose my head in when an employer dose crap like this smacks of utter arrogance best of luck.

[Cennet]

If someone has less than one years service, they can be dismissed with notice ( normally one week's statutory notice) but if they have more than one year, the employer has to go through statutory disciplinary procedures before someone can be dismissed fairly. You can be dismissed whilst off sick if the employer has gone through statutory procedures and either consulted with the employees gp or take independent medical advice and asked the employee to undertake an independent medical examination.

If the person is disabled, then they are given protection under the law if they are dismissed purely because of their disability. They can however be dismissed because of capability, redundancy, conduct or some other substantial reason. Again statutory procedures have to be applied.

No employer is exempt from employement law but the Employment Tribunal will take into account the size and resources of the employer ie they will not expect the small shopkeeper to have the same procedures set up as say Marks and Spencer or Sainsburys. Neverthesless statutory procedures and discrimination law, especially disability, still apply.

For further advice either look at www.acas.org.uk or call the Acas helpline on 0845 47 47 47 or get your niece to visit the local Citizens' Advice Bureau or law centre

[Cennet]

Acas helpline should read

08457 47 47 47

Sorry!!