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Just the start of a tricky one.

 

I've been employed in the same role for the last 20 months. In that time I've gone from employed by an agency (for 12 months) to directly hired by the Company.

 

The Terms and Conditions of my employment have not substantially changed in the last 20 months. I report to the same manager as I have done for the last 20 months. The hours I work has not changed. I have to report to work depending upon the rota given to me by my Manager. I go to lunch as directed and pick up work as directed. I have to book Holidays and report back from any sickness through the same manager as I have done for the last 20 months. I am discplined by the same manager as I have been for the last 20 months. I hand in a time sheet at the end of each week to the same manager as I have done for the last 20 months.

 

What am I..? I don't think I'm self employed

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Unless you are making your own arrangements for tax, NI etc. you are an employee.

You have been employed by the Company for 8 months.

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But Surely Brook Street Bureau v Dacas would make me an employee of the Company as there is an ongoing mutuality of obligation between myself and the company

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But Surely Brook Street Bureau v Dacas would make me an employee of the Company as there is an ongoing mutuality of obligation between myself and the company

 

Yes as Marie says you are an employee of the company and have been for 8 months.

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Mmmm....... reading Brook Street Bureau v Dacas would suggest that the source of mutuality of obligation would be the Company that I work at, not the agency that paid me for the first 12 months.

 

In the first 12 months I could not pick and choose when I worked, what work I did or even if I wished to work that day.

Edited by Faustus
re wording

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Mmmm....... reading Brook Street Bureau v Dacas would suggest that the source of mutuality of obligation would be the Company that I work at, not the agency that paid me for the first 12 months.

 

In the first 12 months I could not pick and choose when I worked, what work I did or even if I wished to work that day.

 

Faustus, what is the real reason for asking cos Marie defined employer employee, and andie303 said employee. It will be easier if you explain the situation then it will all become apparent why the need for a definition ;)


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Having now read Brook Street Bureau v Dacas, I assume that you wish to establish whether you can claim to have been an 'employee' of the Company for 20 months.

 

If the manager you speak of in your OP is a permanent employee of the Company and not the Agency then you may have a case for an 'implied contract of service' with the Company.

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Faustus, what is the real reason for asking cos Marie defined employer employee, and andie303 said employee. It will be easier if you explain the situation then it will all become apparent why the need for a definition ;)

 

Because the part of the company I work for is being Outsourced and I need to be sure where I stand.

 

If I could legally argue that there has been an employee - employer relationship between myself and the Company for the whole time, then I'm in a damm fine place to be as TUPE is in force for the permanent Staff. Which has not been granted to me.

 

My direct manager is permanent staff.

 

The intial contract in January 2004 was for 2 months. No replacement contract was issued to me by the Agency or the Company.

 

The Direct contract was issued in January 2005 for 6 months and no new contract has ben issued. The intial contract was flawed as it provided for the payment of Holiday pay at the end of the contract, not when holiday was taken. Since the contract has rolled on without any changes I could have ended up with no Holiday Pay over a 12 month period.

 

I think LYNCH_V_PERFECSEAL would apply here.

Edited by Faustus
adding info

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If I could legally argue that there has been an employee - employer relationship between myself and the Company for the whole time, then I'm in a damm fine place to be as TUPE is in force for the permanent Staff.

 

You've stated that after 12 months with the agency you were hired directly by the Company 7-8? months ago.

Assuming that the 6 months contract was to cover a probationary period, surely you are now a permanent member of staff.

 

Which has not been granted to me.

 

Why not?

I can find nothing in TUPE 2006 that specifies a minimum length of service is required.

When my daughter's department was outsourced (under TUPE) in 2007 she had only worked there for 6 weeks (half way through her probationary period) and she was transferred with the rest of the department. The length of her service was never mentioned.

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If I could legally argue that there has been an employee - employer relationship between myself and the Company for the whole time, then I'm in a damm fine place to be as TUPE is in force for the permanent Staff.

 

You've stated that after 12 months with the agency you were hired directly by the Company 7-8? months ago.

Assuming that the 6 months contract was to cover a probationary period, surely you are now a permanent member of staff.

 

Which has not been granted to me.

 

Why not?

I can find nothing in TUPE 2006 that specifies a minimum length of service is required.

When my daughter's department was outsourced (under TUPE) in 2007 she had only worked there for 6 weeks (half way through her probationary period) and she was transferred with the rest of the department. The length of her service was never mentioned.

 

First part. No mention has ever been made of taking me on as permanent staff, so as far as I know, I'm still only temporary staff.

 

The company uses a lot of temporary staff about 3 times a year, to cover for the peak periods in work load. I was originally taken on to cover for a peak, and kept on as the team was undermanned. Which is how come I've ended up in the same place, doing the same job for 20 months!

 

I suspect they have assumed that as temporay staff they can just end the contract at a day's notice once the transfer is complete.

 

Which is why I'm trying to work out where I stand. Have they made a mistake or are they correct.

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Can you just confirm the following:

 

1. You were employed by the agency for 12 months on a temporary contract.

 

2. You were then hired directly by the Company on a 6 month TEMPORARY contract.

Is this specified in the contract of employment?

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1) Yes. As stated. Only contract issued was for 2 months

2) Yes.

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OK

 

The case law mentioned looks promising. Especially because you dealt directly with a Company manager in relation to your rota, holidays, sickness and discipline for the whole 20 months.

But you obviously want to keep your job rather than make a claim for unfair dismissal.

Because TUPE procedures are usually completed in a short timescale you need to establish your rights quickly.

 

I'd try these people,

ACAS Helpline 08457 47 47 47

Employment Tribunal Helpline 08457 959 775

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If a company pays you directly and gives you a wage slip you're employed by them; if the agency pays you you're employed by the agency; if you submit invoices for work you've done - you're likely to be designated as self-employed.

 

Have you asked the agency for their opinion? It sounds like a temp to perm arrangement from what you've described.

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