Automatic unfair dismissal, agency worker- do I have a case?

[damon34]

Hi

I was employed through the agency for last 7 months, recently laid off by client due to "business downturn". I received good references from agency, but I have strong feeling that I was laid off because: I was the only one succesfully exercising my rights with regards to holiday pay inluding shift allowance for shift workers( debate with agency which I have won by providing an interpretation from ACAS),so classic example of "troublemaker" plus I was seeking to raise formal grievance procedure with employer, unfortunately HR failed to deliver me company grievance procedure before I was laid off , despite 2 requests. I did researches between people and I was advised not to do this , as in the past everyone who raised grievance was eventually laid off for various reasons. Shortly speaking conspiracy of silence. I have only spoken briefly to HR manager about willingness to raise a grievance and asked to receive company's grievance handbook instruction, I havent received it( they couldnt find it , then I received a voice message on my mobile saying that they have sent it by post on my address but in fact I have never received it, so I dont know whether they were trying to delay things or mislead me by pretending that they did what I was requesting). My grievance claim would be very troubling, involving one on my teamleaders( victimisation by teamleader, intimidation and harrasment by coworker- racial jokes, shouting, constant criticism) plus sexual orientation harrassment (perceived- being called: gay, faggot by some people inc. teamleader). Anyway I decided to sort it out informally, have spoken to cell leader about some of the things, his solution was to keep me away from one of the aggressors and assign me to different machine with different co-worker.

Also I think I must have been classed as whistleblower, as I was making an attempts to raise an awareness between employees about trade union recognition,people generally were threaten by employer, if any trade union initiative was raised, then employer was declaring to pull the business to somewhere else resulting in losing jobs, typical blackmail.

Anyway recently I was informed by agency during the weekend that client didnt need me anymore due to downturn in businees, was asked to return all company belongings and the agency was even willing to pay me one week notice without need to come in to work. Stinky case.

I have discovered that on my section I was the only one laid off, despite there was somebody else who started later than me, had the same competences, was doing the same job, yet he was kept, probably as he was "obedient".

My ability to do the job was never questioned.

Now agency is recruiting again for the same position, they didnt offer me a job, despite I have now experience, I suspect it could be for the same company( still investigating this), but even though looks like they will not offer me a job ,as they would be worried about my ability to exercise my working time regulation rights regarding pay, holiday etc.

My teamleader told my that i was the first and the only one person complaining about agency, holiday pay( despite I proved my point!). Looks like the agency and employer are still cheating employees knowingly with regards to holiday pay( shift workers).

Evidences I have: my emails to agency with ACAC interpretations about holiday pay, which agency eventually recognised)

I dont have a written evidence about my attempts to raise grievance , as I didnt have enough time because 2 weeks after my waiting to receive company grievance book I was laid off.

Question: Do I have a case to claim unfair dismissal based on automatic reasons?

Thanks

[iaintw]

you have been unfair treated by the company you have. You should have a right to appeal with the dissioun of the base of unfairly dismisal write a letter to your former employer to say these things a slander against me. these are in case of discrimation and working act

you should have a holiday which you are entitle to have

You have the right to whistleblowing the company who breaks the laws.

You also have a copy of employment act

 

what type of work u work with

I

[iaintw]

do these things so employment trubial can act (Not yet until you have raise a complaint about your treatment )

[damon34]

Ok, thanks for replies.

I worked in CNC industry ( for the first time and probably the last). I have never worked in such rough, racial, homophobic environment before.

My claim is based on fact that there is a list of reasons, where you dont have to have 1 year continuous service for employer to claim unfair dismissal.

These reasons make claim automatic.

One of the reasons is that I was the only one exercising myWTR rights in terms of holiday pay for shift workers ( agency was paying me basic rate and insisting that neither agency nor employer never paid shift allowance on top of basic rate, when you were on paid holiday). Looks like they have been cheating people for a long time. Anyway after I supplied ACAS interpretation in this matter, they said they need to investigate very carefully and they engage a specialist solicitor, an expert in employment law to get a professional expertise. After I stated that if this expertise will not be in my favour, I will escalate this to ET, as I knew I was right, then they gave up and said that I was right. Another fact which obviously didnt help me was , that I let them know that I was familiar with New agency workers directive act being in force since October 2011, basically giving me a right to the same pay as contract workers, if I was doing the same or similar job ( after 13 weeks). So I think agency wanted to avoid a suspicions if decided to get rid off me around 13 weeks and they laid me off now.

Problem is: I dont have enough evidence, as I havent been given a chance to raise the grievance, as I was waiting for company grievance book, which never arrived.

Question is: what course of action should I take before submitting my claim to ET? Still trying to raise grievance with employer, despite I dont work there anymore?

Thanks

[iaintw]

Holiday paid is one of the employement act

This employer has been broken the law on holidays so thats why u need to have this

I hope you succeed to fight.

I work for a supermarket and Holiday paid is one of the contract if you still have ur contract with them?

[becky2585]

Bad news I'm afraid - you can't bring an unfair dismissal claim, or whistleblowing (you can only claim an award here for a detriment short of dismissal). Agency workers don't have the right to do this as they are not employees. The Tribunal therefore doesn't have jurisdiction to hear your claims.

 

Discrimination claims can be brought only if you are found to be "employed" for the purpose of anti discrimination legislation (which actually is a principle at odds with other employment legislation, conflicting for example with unfair dismissal law). It would basically mean you could bring a claim, in theory, if you have a contract with the "end user".

 

Sorry to be the bearer of bad news!

Edited November 21, 2011 by becky2585

[Steve2020]

I dont think you will have a case. I recently read that a court in England decided that an agency worker had limited rights in this respect because the woman didnt have a written contract. If you do then you may have a case but otherwise read the following thread. I have had to remove the link as i am not allowed to add links until i have 10 posts on here.

Chech on google for Mrs James case with borough council and you will find it.

 

Cheers

[neilio100uk]

Hi,

 

You say you worked for an agency, have you a contract, as your rights will depend completely on the type of contract.... Agency workers as standard will have either:

 

- Contract of Services

- Contract FOR Services

or

- Contract of Employment

 

Either way, you don't have a huge case, as all of the contracts will state that they can end / begin work as per their clients request. Holiday Pay etc will not be an issue, as this doesn't cost the client, costs the agency (but is factord into charges).

 

The only way you will have a gripe, or complaint is if they end your working patterns, and state they will not consider you for other work. Generally if there is a downturn in work, but you will be considered for other assignments (at which the whole judgement of match lies in the Agencies Court), they are pretty much inside the guidelines.

 

Sorry.

[ISay]

Hello,

 

I don't have all of the facts so this is something you will have to investigate thoroughly: I have it on good authority that if you are taken off a secondment due to the business no longer requiring the current staff levels, they are not allowed to re-fill your position for a certain length of time.

 

Go to the Citizen's Advice Bureau and perhaps ask for legal aid solicitors in your area because if you are on benefits / not earning a wage then you may receive legal advice free of charge. What you need to know is; is there a law your agency broke by employing new staff after having let you go (and by choosing to let you go despite having the option of letting the most recent agency worker go and by not offering you the secondment once it became available which would have made the most sense).

 

You cannot bring a claim to an Employment Tribunal because of the wording of the law (ridiculous I know), as you likely have a "statement of particulars" rather than an "employment contract", you are not "legally" an employee (i.e. "in the eyes of the law") despite the reality being that you are paid to work for them; they make money from you and common sense dictates that this makes you an employee but judges have to follow the law to the letter so you cannot make use of an Employment Tribunal which is for employees only. Insane.

 

However, you may be able to use the traditional courts. This will cost you though (but at least you can claim legal costs if the agency loses and should be easier to obtain). Be absolutely sure that your solicitor/barrister believes you have a strong case. They are not allowed to lie to you and must be honest when you ask; also check if you have to raise a grievance first which you can do even now (up to about 6 months after ending your employment).

 

Additionally; it's worth asking the solicitor to contact the agency letting them know what action may be taken against them due to the law(s) they have broken and suggest that they settle the dispute for a reasonable amount of money and negotiate this with them.

 

It's at least worth a conversation with a solicitor especially if you can get legal aid and have the cost covered.

 

Regards

 

P.S. You are not alone, this happens all the time to everyone who stands up for themselves no matter who you are.

 

P.S.S. The advice about making sure you have a strong case and claiming costs only applies if you cannot obtain legal aid and have to pay the costs yourself upfront. Also; try to get witness statements and collect all relevant evidence.

Edited January 1, 2013 by ISay

[Nystagmite]

This thread about a year old now.

[ISay]

Thanks for that - just noticed the year on the previous post! Oops, but at least this thread may help someone else when it comes up in their Google search!