Marc Gander - The Consumer Survival Handbook


A 220 page introduction to all things consumer related by our own BankFodder.

Includes energy companies, mobile phone providers, retailers, banks, insurance companies,debt collection agencies, reclaim companies, secondhand car sellers, cowboy garages, cowboy builders and all the rest who put their own profits before you.

£6.99



Patricia Pearl - Small Claims Procedure - A Practical Guide


An excellent guide for the layperson in how to use the County Court - a must if you are intending to start a claim.

£19.99 + £1.50 (P&P)


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  1. #1
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    Default Long term casual worker and sending of P45

    Concerning the issue of whether we are a casual worker or a an employee there is many criteria to consider for example the time we work for the employer, our skills, whether he employs us only in case of shortage or during peak time or he uses us in the normal running of our business...etc.


    However I would like to know if the conclusive evidence is not when the P45 has been issued because if it has been issued one year after the start of employment this means that we are now an employee.

    It is up to the employer to decide if he need us anymore or nor and as a consequence if he send us our P45 or not. If the employer decides because it is not convenient for him not to issue a P45 at the end of each project we could be consider as an employee

    There is also the issue of HMRC and in order the employer not to pay tax maybe a worker has to work only for a small period of time and not come back for a long time

    There is also the issue of the difference between temporary employee and a casual worker


  2. #2
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    Default Re: Long term casual worker and sending of P45

    Sorry, I am not clear what your issue is please?

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  3. #3
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    Default Re: Long term casual worker and sending of P45

    The issue is if we have worked for an employer doing projects and we are dismissed after one year and the employer says that we are not entitled to claim unfair dismissalicon because we were workers because from time to time there were gaps of two or three weeks between the projects and as a consequence we were worker and not employee and we cannot have one year continuity service.


    In this case I would like to know if the employee does not send us the P45 at the end of each project but when we were dismissed after one year if this means that we were employees and not workers and entitled to claim unfair dismissal


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    Default Re: Long term casual worker and sending of P45

    ok. This is probably your best guide to worker VSicon employee status

    https://www.gov.uk/employment-status/employee

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    Default Re: Long term casual worker and sending of P45

    If you were dismissed after one year you would still not be able to claim Unfair dismissalicon (unless for dismissal due to a protected characteristic) as the threshold is now two years.

    Any advice given is done so on the assumption that recipients will also take professional advice where appropriate.

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  6. #6
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    Default Re: Long term casual worker and sending of P45

    I have looked in this website but it gives only general information about the difference between employee and casual worker. However my problem is more specific.


    The events to which I refer relates before the law changes so for me it is one-year continuity service.


  7. #7
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    Default Re: Long term casual worker and sending of P45

    the law has been changed for a long time - you may be out of time for a claim. when did your employment start?

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  8. #8
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    Default Re: Long term casual worker and sending of P45

    My claim has been issued on time. The problem that I have is more this issue of difference between employee and casual worker to which I refer in my thread


  9. #9
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    Default Re: Long term casual worker and sending of P45

    My opinion is that it depends when the P45 is sent to them. If it is sent at the end of each period of work they are workers. However if this is not the case and if the P45 was sent to them after one year (now is two years) they become employee on flexible hours.
    The difference is that they would be able to claim unfair dismissalicon if they are removed from the bank register without any good reason or are dismissed in the middle of a project without any good reasons.
    In fact it will depend on the need of the employer. If it is not practicable for the employer to issue a P45 to many people very often and choose not send it after each period of work and not sent it before one year they could be considered as employees. However I am not sure I am right. Otherwise staff could be used for many years nearly as permanent employee without ever obtaining the same rights as employees


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    Default P45 and leaving date

    I would like to know if the 'leaving date' stated in the P45 is the date when the employment relationship ended and could be used to prove that we have enough continuity of service to claim unfair dismissalicon


    I would like to know which regulation deals with the meaning of the 'leaving date' in the P45


  11. #11
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    Default Re: P45 and leaving date

    Hello there.

    If you're asking about unfair dismissalicon, then this is an employment query rather than a benefits one.

    I'll move your thread to the employment forum and leave you a short term redirect to follow.

    HB

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    Default Re: P45 and leaving date

    Other documents would take precedence - such as a letter of dismissalicon or personnel record. A P45 is merely a declaration of pay and tax deducted so these would have to be correct for the tax week stated on the P45. Omissions or errors to a leaving date might have an impact on the tax paid when restarting employment but nothing more.

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  13. #13
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    Default Re: P45 and leaving date

    What happens when there is no letter of dismissalicon and no record ?


    Moreover in order to be entirely sure I would like to know which act of parliament or regulation deals with this issue


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    Default Re: P45 and leaving date

    Lots of variables here. Can you give us more detail on what you are trying to claim and why please? Or we'll be guessing what to tell you

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    Default Re: P45 and leaving date

    Quote Originally Posted by resources View Post
    What happens when there is no letter of dismissalicon and no record ?


    Moreover in order to be entirely sure I would like to know which act of parliament or regulation deals with this issue
    If there is no record of dismissal held by the employer, nor a letter advising of dismissal issued to the employee, then this would be open to argument - an employee might argue that a date stated on a legal document such as a P45 could imply that the employer had in his mind a termination date when completing the P45 with that date on it. There might also be implications drawn from a wage slip showing whether an employee was paid to a specific date and for no longer. This might support a date shown on a P45 in an employee's favour, or it might counter that argument and support an employer's assertion that a date on a P45 was indicative merely of the date when the final payroll was run.

    This is not an issue covered by legislation, but one of contract - in the absence of written information one would draw inferences from documentary evidence or hearsay.

    The legislation relating to the P45 itself would be Regulation 36 of The Income Tax (Pay As You Earn) Regulations 2003, specifically:-

    36. (1) On ceasing to employ an employee in respect of whom a code has been issued, the employer must complete Form P45.

    (2) The employer must then—

    (a)send Part 1 of that form to the Inland Revenue, and
    (b)provide Parts 1A, 2 and 3 to the employee,
    on the day on which the employment ceases or, if that is not practicable, without unreasonable delay.

    (3) Retirement on pension is not a cessation of employment for the purposes of this regulation if the PAYE pension income is paid by the same employer after retirement.

    (4) The information listed in column 1 of Table 2 must, subject to the conditions set out in column 2, be provided in the various Parts of Form P45 as indicated in columns 3 to 5.


    Information which must be provided in Form P45

    Information to be provided

    1. the employer’s PAYE reference

    2. the employee’s national insurance number

    3. the employee’s name

    4. the date on which the employment ceased

    5. the employee’s code or, if more than one, the latest code, issued by the Inland Revenue for the tax year during which the employment ceased

    6. whether the employee’s code is used on the cumulative basis

    7. the tax week or month in which the last relevant payment was made to the employee or, in a case falling within regulation 24, was treated as having been made

    8. the total payments to date and the corresponding total net tax deducted

    9. the total payments to date relating to the employment in question and the corresponding total net tax deducted

    10. the total payments to date relating to the employment in question and the corresponding total net tax deducted

    11. the number used by the employer to identify the employee

    12. the department or branch in which the employee was employed

    13. the employee’s address

    14. the employer’s name

    15. the employer’s address

    16. the date the Form is completed

    The regulations do nothing more than impose obligations regarding completion of the P45 which would be within the jurisdiction of an ET, but one could form an argument that since the Regulations stipulate that both a 'Leaving' date and a 'Form Completion' date must be entered that an employer must have had it in mind that an employee's leaving date was 'X' at the time the form was completed. It would then be for the employer to explain why that was not the case and whether this was a genuine oversight - the employee's argument would be strengthened if that cannot be adequately explained, particularly if the termination pay was consistent with the leaving date shown on the P45, and the employer's counter-argument would be more plausible if that consistency was not evident and if there was a reasonable explanation for the date error.

    Any advice given is done so on the assumption that recipients will also take professional advice where appropriate.

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  16. #16
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    Default Re: P45 and leaving date

    I would like to use the ‘leaving date’ on my P45 to prove that I have enough continuity service to make a claim for unfair dismissalicon
    I was suspended but usually suspension is on full pay but I was not paid

    I have a part time job so I did not work every day

    The reasons put forward by my employer for not having sent me before a P45 is that he has to wait the end of the payroll period before issuing a P45 and he has to wait that I was paid before issuing a P45.


    The payroll period for the firm ends at the end of the month and the staffs were paid at the beginning of next month

    My employer put forward also as reason for not having sent a P45 before the fact that 10 days after I was suspended there was the festive period and his office was closed

    Hence the important question is whether a P45 could be issued only at the end of a payroll period when we are paid and if a P45 can be issued at any time.

    Another important question is if the ‘leaving date’ is put automatically by the computer in the P45 when it is issued or it is the employer who chooses to put the ‘leaving date’ that he wishes on the P45.


    Moreover there is only one date in the P45 i.e. the ‘leaving date’ because the date when the P45 was issued is not stated in the P45.


  17. #17
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    Yes and the suspension period ended when I received my P45

    My question is important because an employer cannot deny that the 'leaving date' in the real date of end of the employment relationship if he has decided himself which leaving date he put in the P45. Unless he says that it was a mistake of his accoutant


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    Default Re: P45 and leaving date

    The legislation you need is the Employment Rights Act which spells out how the date of the termination of employment is calculated.

    I'd say the date on your P45 is a good starting point if you have had no dismissalicon letter. Under ERA you are entitled to have written reasons for the dismissal.

    Incidentally, the date on the P45 is entered by whoever does the payroll, and is nothing to do with what the compu'er says.

    Does it match the date you were told you were fired?


  19. #19
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    Default Breach of contract in a 'zero hours contract'

    I started to work on a ‘zero hours contract’ for a firm to complete a project which was intended to last for seven weeks. There was a probationary period of 30 hours. After I did 43 hours I was told that I cannot carry on with the project and I was removed from the project.

    Technically because I worked more than 30 hours my probationary period was over when I was removed from the project. However it is possible that my employer nevertheless considers that I have been removed from the project because I have failed my probationary period.

    My supervisor told me by email that I was removed from the project because I did not do the introduction of work properly and when late I complained I was told also by email that my productivity was not good.

    However I consider that these reasons did not correspond to the reason stated in the documents given to me by my employer to remove a worker from a project which a worker will be removed from a project if he/she did not follow repeatedly the guidance given to her/him by his/her supervisor or underperform for a significant period in comparison of the other workers on the project for the following reasons

    • If I did not do the introduction of the work properly it is a question of guidance given by the supervisor to the worker and there is no evidence that I refuse to follow the guidance. Moreover my supervisor did not ask me to correct the way I did the introduction and did not give me any guidance concerning this matter

    • The introduction of the work does not form part of the project itself.

    • My supervisor told me also that I could do another project but not a project of this seniority what is not a good reason to remove me from a project according to my employer’s rule

    • I was told that I underperformed but not that I underperformed in comparison to the other workers in the project. I know that I did not underperform in comparison to the other workers in the project because I know what was the work that the others workers did

    • My supervisor told me that my productivity was not good because I worked 70 hours even though I work in reality only 40 hours and I had to correct him what is evidence that my productivity was not property assessed by my supervisor.

    • My employer did not follow its own rules to assess my work.

    I think that my supervisor did not tell me the real reason why I was removed from the project and that he was looking for an excuse. The reason could be that my employer has phoned to one of my previous employers who told him bad things about me because I issued in the past a claim to the ET against him or it is one of the discriminatory reasons like age, race or disability for example.

    I am unhappy because I have refused to work for another firm to work for this firm and at the end I have no work at all. I would like to know if I can bring a claim for breach of contract against my employer because ‘zero hours contract’ mean a contract and I would like to know if my employer by not following its own rules concerning the removal of a worker from a project has committed a breach of contract. I would like to claim loss of earnings within a breach of contract and be paid at least the six remaining weeks of the project that I was not paid. I would like to claim also for injury of feelings

    I would like to know also if I have to issue my claim to the Employment Tribunal or to the county courticon


  20. #20
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    If you were on a true zero hours contract, your employer could simply choose to say they have no hours for you each week for the remaining weeks (if you are on a fixed period contract, or forever if you are on an open ended contract)

    Unfortunately, until you have worked for an employee for more than 2 years you have no rights to take your employer to a tribunal for unfair dismissalicon (or much else) unless it's on grounds for discrimination where special rules apply


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