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Ben Jones
Ben Jones, Solicitor
Category: UK Employment Law
Satisfied Customers: 38565
Experience:  Expert in UK Employment Law
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Hi. I was a self-employed agency worker with 5.5 months service

Resolved Question:

Hi. I was a self-employed agency worker with 5.5 months service when I was subject to bullying by the Foreman who used the site radio system to broadcast Homo-phobic taunts and played music from Queen and Gay-Bar. At the end of the day as he arrived at the gatehouse with two co-workers he continued to humiliate and degrade me in front of these two co-workers. I left immediately not even waiting for the two hours to the end of my shift.

Now a blanket of silence has descended and none of my former co-workers will answer email, phone calls or text messages. it seems to me that the company, a very large one has silenced potential witness' with the threat either to their career or the well being of their company if a sub-contractor.

They had their internal inquiry and I received a letter saying disciplinary action will be taken where appropriate and that inappropriate use of site radios is banned with immediate effect.

Can I subpoena witness', as it appears none will speak for me ?

Can I get an employment tribunal to order the release to me of the results of the company's internal enquiry ?

Although I was notionally self employed, the nature of the conduct was that I was a worker, not able to quote for work nor to substitute another in my stead, so I think that I was a worker for the purposes of a Tribunal, is this correct please ?
Submitted: 11 months ago.
Category: UK Employment Law
Expert:  Ben Jones replied 11 months ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. Is your employment continuing and if so how much service do you have at present?

Customer:

No, I left there and then. Now doing occassion odd handyman jobs and apply for jobs

Ben Jones :

When did you leave?

Customer:

17 July. The date of the tsunami of bullying.

Ben Jones :

What do you wish to get out of this, do you actually want to claim against the company?

Customer:

I had a fair expectation of employment til christmas, so by that measure, I'm short of about 7K in wages, notwithstanding my patchy handyman work. Also, thjere is an issue of my being hurt by the events. Grief, unresolved brought to the surface...... that plainly is not the fault of the company, I know that. Bur surely the company had a duty of care toward me, no ?

Customer:

2010 equality and diversity act prohibits this kind of behaviour. I am not gay, they probably knew that, but that did not stop them.

Ben Jones :

If you were considered a worker rather than self employed you would not get any extra rights in the circumstances as the main advantage is that you may be able to claim constructive dismissal but in the absence of 2 years' continuous service you cannot make the claim anyway.


 


Regardless of whether you are employed or self employed you will have protection against discrimination, which can also include discrimination due to sexual orientation. However, any claim has to be made within 3 months of the alleged discriminatory act taking place so you only have 2-3 weeks to do something about it. Even if you did, you will have to pay a claim fee and if it proceeds - a hearing fee, together these will be over £1,000. However, if successful you could recover these and also get compensation for injury to feelings and perhaps compensation for loss of earnings although the latter would be more difficult to pursue.

Customer:

If I go through an employment tibunal, it will be cheaper than Crown Court, also if I fail, costs are less likely toi be awarded against me, or so I believe.

Customer:

Can I subpoena witness' to an ET as they will not speak for me of their own volition ?

Ben Jones :

yes you can make an application to the tribunal to make a witness order compelling a witness to attend

Customer:

Can I compel the company to release to me the findings... the papers... of their internal inquiry which would provide all the evidence regarding the Homopobic taunting ?

Ben Jones :

in a claim each party has a duty to disclose all documents relevant to the claim, whether they are helpful or not to them. So if the employer has not disclosed certain documents which you know exist, you can also make an application to the tribunal to order specific disclosure, requiring them to disclose it

Customer:

Ben you have been most helpful to me. I believe the best I can hope for is to shame the company into being reasonable. I find it shocking that these things still go on................. Thank you for your clarification.

Ben Jones :

as an employment lawyer I see it all too often unfortunately....Anyway, you are most welcome. Please take a second to leave a positive rating for the advice I have provided as that is an important part of our process. Thank you and all the best

Customer:

One last point please Ben, sorry if I'm abusing your good nature.... if sucessful, what should I aim for in damages.... any clues ?

Customer:

I have sufferd excsma over my hands, crying myself to sleep, a newly aquired pariah status in my own home town being viewed as 'batting for the other side'.....

Ben Jones :

If a claim for discrimination is made, the usual remedy would be to award compensation for injury to feelings. This is calculated by considering the level of discrimination that the claimant has been subjected to. The discriminatory behaviour is assigned to one of three ‘bands’ known as Vento bands, named after a court case with that name. These bands are:



  • Lower band - for less serious cases, for example an isolated incident or event (£600 - £6,000)

  • Middle band - for serious cases which are not serious enough to fall within the highest band (£6,000 - £18,000)

  • Top band - for the most serious cases, for example if there has been a lengthy and calculated campaign of harassment/discrimination (£18,000 - £30,000)

Customer:

Thank you. I have ACAS poised to contact them as a prelude to action. thank you.

Ben Jones, Solicitor
Satisfied Customers: 38565
Experience: Expert in UK Employment Law
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