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Awan-Legal
Awan-Legal, Solicitor
Category: UK Employment Law
Satisfied Customers: 128
Experience:  Expert
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I have recently been dismissed from a contract post I held

Resolved Question:

I have recently been dismissed from a contract post I held for just over two months. I was asked to give a week's notice to my previous employer and was systematically bullied by the manager who employed me throughout my employment.

However, the area I think I might be able to challenge on is to do with the post name and job description, both of which were misleading and didn't refer to the actual day-to-day work at all! The post was termed 'Training Coordinator" and the job description cited duties such as 'course design and development' (so in this respect really Training Development Manager). As it turned out, while some of the duties matched the job description, others, such as running a youth club, were not mentioned at all (or in interview). Sticking point could be that the reasoning behind the dismissal were valid in accordance to interview and contract and job description, however as a result of my stress from the other duties I was called to do that I don't have experience in, my performance in areas I do have experience in was massively compromised.

I did not dispute a 2 week notice period I was given, but have yet to send in my invoice for it as I wanted to raise this query first. What would you advise?( assuming this is clear enough for you to respond in any way)!
Submitted: 2 years ago.
Category: UK Employment Law
Expert:  Awan-Legal replied 2 years ago.

Awan-Legal : Hi
Awan-Legal : What was the reason for your dismissal?
Customer:

  • The challenges we faced over the weekend (31st & 1st April 2012) regarding the management of the mission, processing of information, communication with senior members of staff, communication with those you are line managing and your overall decision making process

  • Your lack of youth engagement skills needed for the post

  • The lack of strong leadership of your team

  • On many occasions you were not solution focused i.e. This characteristic was displayed within the meeting had at the Café with Nii, you and I where I stated we need to switch from being a defeatist to a solution finder regarding Fish Club


 

Customer:

Just to add - challenges were basically a result of a set up though hard to prove

Customer:

the youth engagement issues came about largely because the manager discredited me to the youth in a number of ways (eg to do with being 'uncool', 'posh'- she met me at interview so knows what I am like).

Customer:

leadership was an issue but to do with my previous point.

Customer:

'solution focussed' refers to me questioning a half baked plan that could not work and in the end was not followed anyway.

Awan-Legal : Thanks. You can claim against your employer for unfair dismissal if you have worked for him for 2 years or more. However, you can claim for automatic unfair dismissal before this time for the following reasons (hence my question above):
Awan-Legal : There are some reasons for dismissal that are automatically unfair. If you are dismissed for any of these reasons then you should be able to make a claim to and Employment Tribunal for unfair dismissal.If your employer dismisses you for exercising or trying to exercise one of your statutory (legal) employment rights you will have been automatically unfairly dismissed.An employees statutory employment rights include a right to:a written statement of employment particularsan itemised pay statementa minimum notice periodmaternity, paternity or adoption leavetime off for antenatal careparental leavetime off for dependantsthe right to request flexible working arrangementsnot to be discriminated against because of your gender, race, disability, religion or belief, sexual orientation or ageguaranteed pay when work is not available for youtime off for public duties (eg jury service)protection against unlawful deductions from wagesremuneration during suspension on medical groundsrefusing to do shop or betting work on a Sundaymaking a public interest disclosure or ‘blowing the whistle’
Awan-Legal : You have three months to make a claim
Customer:

Thank you. I would think that the relevant part for me is 'written statement of employment particulars.' Is your response valid for contractees as well as employees, as I was a contractee at the company? Probably a stupid question, but do I need to notify the company if I make a claim, or do I need to reject the notice payment?

Awan-Legal : So you were self employed?
Customer:

yes under an 11 month contract

Customer:

i understand that everyone who works at the company is working as a contractee

Awan-Legal : As a general guide as to whether a worker is an employee or self-employed; if the answer is 'Yes' to all of the following questions, then the worker is probably an employee:Do they have to do the work themselves?Can someone tell them at any time what to do, where to carry out the work or when and how to do it?Can they work a set amount of hours?Can someone move them from task to task?Are they paid by the hour, week, or month?Can they get overtime pay or bonus payment?If the answer is 'Yes' to all of the following questions, it will usually mean that the worker is self-employed:Can they hire someone to do the work or engage helpers at their own expense?Do they risk their own money?Do they provide the main items of equipment they need to do their job, not just the small tools that many employees provide for themselves?Do they agree to do a job for a fixed price regardless of how long the job may take?Can they decide what work to do, how and when to do the work and where to provide the services?Do they regularly work for a number of different people?Do they have to correct unsatisfactory work in their own time and at their own expense?
Awan-Legal : If you were self employed then you cannot claim automatic unfair dismissal but please see the above with regards XXXXX XXXXX was employment or self employment as it is not always clear with a contractee.
Customer:

The answer is yes to these questions: Do they have to do the work themselves?Can someone tell them at any time what to do, where to carry out the work or when and how to do it?Can they work a set amount of hours?Can someone move them from task to task?Are they paid by the hour, week, or month?

Customer:

However I am self employed in the sense that I sort out my own tax and national insurance payments, this is not done by the company.

Awan-Legal : The HMRC state as follows on determining between employment and self employment:
Awan-Legal : Recent court cases indicate there is no single satisfactory test governing the question whether a person is an employee or self-employed. One must consider all the factors that are present in, or absent from, a particular case; weigh those pointing to employment against those pointing to self-employment; and then stand back and consider the picture that emerges. The result may be that a person is considered to be in business on his own account (self-employed) or is an employee.The following factors are not an exhaustive list but they do include the more important ones.Personal serviceIt is a necessary condition of a contract of service that the worker is required to provide his or her services personally. Consideration must therefore be given to whether or not a worker could provide a replacement worker in his or/her absence. This is usually referred to as a right of substitution.Where both the worker and his or her engager understand that a suitably qualified or skilled person can (or must) be provided by that worker in his or her absence the situation is very likely to be self-employment.The absence of a right of substitution (in other words a requirement for personal service) does not necessarily mean that the worker will be an employee. A requirement for personal service may exist in situations of employment and self-employment. See below for more information on substitution.Top Mutuality of obligationThe minimum obligations that are necessary for a contract of service are the obligation on the part of the worker to give personal service and the obligation on the part of the engager to pay the worker for that service. An employment contract will often also indicate that the engager will provide work for the duration of the contract during the agreed working hours.Right of controlThe employee must be subject to a certain degree of control by the engager although control need not be exercised in practice. It is the right of control that matters. The engager may control how a worker performs his services, what tasks have to be performed, when and, or where they must be performed.The fact that a worker may be told how to perform duties will usually be seen as a strong pointer to employment but, where the worker is an expert (For example, a ship's captain, consultant brain surgeon and so on), the absence of this aspect of control would probably not be seen as material.The employee will usually be expected to work set hours each day or week but may be permitted to work flexible hours and to work at the employer's premises or at other places with the agreement of the employer. The self-employed person is more likely to have the freedom to do work when and where he or she wants.Top Right of substitution and engagement of helpersSome contracts give the worker a right to send a replacement or engage a helper. Where the worker has to pay that person this would be regarded as an indicator of self-employment. The degree to which it points in that direction would depend on the particular circumstances of each case. Relevant considerations would include whether the engager reserved the right to reject a substitute and whether the right was exercised on a regular basis.The worker may, however, only have a right to propose a substitute rather than a right to actually send a substitute, and this would probably be seen as only a mild pointer to self-employment.Provision of own equipmentA self-employed contractor generally provides whatever equipment is needed to do the job (though in many trades, such as carpentry, it is common for employees, as well as self-employed workers, to provide their own hand tools).The provision of significant equipment (and, or materials) which is fundamental to the engagement is of particular importance. For example, where an IT consultant is engaged to undertake a specific piece of work and must work exclusively at home, using the worker's own computer equipment, that will be a strong pointer to self-employment. But where a worker is provided with the necessary equipment, materials and so on by the engager that points to employment.Top Financial riskIndividuals who risk their own money by, for example, buying assets needed for the job and bearing the running costs and paying for overheads and large quantities of materials, are almost certainly self-employed. Employees are not usually expected to risk their own capital.An example of a financial risk is where a skilled worker incurs significant amounts of expenditure on training in order to obtain the skills needed, which is used in subsequent engagements. This can be treated as a pointer to self-employment, in the same way as investment in equipment to be used in a trade, if there is a real risk that the investment would not be recovered from income from future engagements. Self-employed workers may also be required to rectify unsatisfactory work in their own time for no additional reward.Financial risk could also take the form of quoting a fixed price for a job, with the consequent risk of bearing the additional costs if the job overruns. The risk of making a loss is a very strong indicator of self-employment and can be decisive on its own.Opportunity to profitA person whose profit (or loss) depends on the capacity to reduce overheads and organise work effectively may well be self-employed. People who are paid by the job will often be in this position. For example, a person who quotes a fixed price may well be able to complete the task ahead of schedule or at a lower cost than originally envisaged. People who provide their own materials may be able to profit by getting a good price on the materials or by charging more for them.Top Length of engagementBy itself, the length of a particular engagement may have little importance in determining employment status, although it is more likely that an employee will have an open-ended contract.It is; however, common these days for employees to be engaged on fixed term contracts. Where a person undertakes a number of short-term engagements for different engagers and runs the risk of bad debts, incurs expenditure in the course of obtaining engagements and so on, he or she may be regarded as self-employed. On the other hand, a person engaged on a short-term contract may be regarded as a casual employee. This factor must be viewed in the light of all the different aspects of a person's work.Part and parcel of the organisationAt one time this was considered to be a test of employment or self-employment, but it is now viewed as one factor to be considered with all the others.Establishing whether a person becomes 'part and parcel' of a client's organisation can be a useful indicator in some situations. For example, someone taken on to manage a client's staff will normally be seen as an integral part of the client's organisation and this may be seen as a strong indicator of employment.Top Employee-type benefitsThe presence, in a contract, of benefits such as paid leave, membership of firm's pension scheme, right to car park space, canteen facilities and so on is a good indicator that an employment relationship exists. A contract of employment may also contain access to a grievance procedure and the worker may be subject to disciplinary procedures.The absence of such benefits may be viewed as a pointer to self-employment but the lack of these is usually as a consequence of the intention of self-employment. It may be necessary to consider whether employees of the engager, who do similar work, have access to such benefits. A comparison might also have to be made between the rates of pay of those employees and the 'contract' worker, as the latter may be paid a greater rate in order to compensate in part for the absence of such benefits.Right to terminate contractA right to terminate an engagement for a reason other than serious breach, by giving notice of a specified length, may be viewed as indicative of a contract of employment, but, at best, XXXXX XXXXX be regarded as a minor factor. Such a provision is unlikely to be found in a contract for services, which usually ends on completion of the task, or if the terms of the contract are breached.Top Personal factorsIn deciding a person's employment status it may sometimes be necessary to take into account factors which are personal to the worker and which have little to do with the terms of the particular engagement being considered. For example, if a skilled worker works for a number of clients throughout the year and has a business-like approach to obtaining engagements (perhaps involving expenditure on office accommodation, office equipment and so on) this will point towards self-employment. Personal factors will usually carry less weight in the case of an unskilled worker, where other factors, such as the high level of control exercised by the engager, are likely to be conclusive of employment.Mutual intentionThe intention of both parties can be decisive where the factors pointing to employment and to self-employment are evenly balanced. But a stated intention, for example, for self-employment is of no consequence where the facts point clearly to employment.SummaryWhether a worker is an employee or self-employed depends on a range of factors, but the final opinion is not reached by adding up the number of factors pointing towards employment and comparing that result with the number pointing towards self-employment. The courts have specifically rejected that approach.It is a matter of evaluation of the overall effect, which is not necessarily the same as the sum total of all the individual details. Not all details are of equal weight or importance in any given situation. The details may also vary in importance from one situation to another.When the detailed facts have been established, the right approach is to stand back and look at the picture as a whole, to see if the overall effect is that of a person working in a s
Awan-Legal : If there are any emails, letters or contracts which describe the way the relationship will work, these will be helpful in deciding whether the person is an employee or an independent contractor. However, just because someone is treated as self-employed for tax purposes, or is described as an independent contractor or consultant does not necessarily mean this is the case – the label given to the relationship by the parties, whilst relevant, will not be decisive. The courts will always look at the true nature of the relationship. If the relationship has changed, perhaps over time, then it is possible that the court or tribunal might find that someone who started work as an independent contractor has become an employee.
Awan-Legal : As there was no written statement of terms, you may be eligible to make a claim based on automatic unfair dismissal but only if the court agrees that You are an employee.
Customer:

ok, thanks, XXXXX XXXXX i will address this as we had a situation where a finance manager resigned within a couple of months, the pakistani gentleman is still being bullied, and someone needs to challenge the bully manager! Last question, sorry, I will accept soon - do i need to notify the company or reject any payments if i do make a case?

Awan-Legal : Thanks, XXXXX XXXXX revert back to you in just a bit if that is okay as I have a telephone conference.
Customer:

no prob - will check later in the day. I will accept as soon as I have read your response to the last questions I posted (re notifying company and rejecting payments).

Awan-Legal : You can accept payment of the notice period. With regards XXXXX XXXXX company, you should write a letter of complaint and give them a reasonable time to respond such as 7-10 days posting the letter by recorded delivery. You must claim withinthree months of the date of dismissal though. With regards XXXXX XXXXX statement of terms, this is only a breach if the company failed to provide you with one but only after you requested one, if you did.
Awan-Legal : The only other way is if they breached a statutory requirement by law as set out above or if you genuinely believe you were discriminated against and that was the reason they dismissed you.
Customer:

Ok, thanks

Awan-Legal, Solicitor
Satisfied Customers: 128
Experience: Expert
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