Dismissed because of ET claim

[WBWarrior]

Hi,

 

I recently brought an ET cliam against my employer for unpaid holiday pay and unlawful deductions from wages. i was employed at the time and in their ET3 response they also stated that my employment was continuing.

 

They have done nothing but lie and deny everything about the claim saying that I am not owed anything, even though I can prove that I am. The other week my solicitor sent a letter to their solicitors basically blowing their defense apart, no doubt this annoyed them. The other day I was told that it was not appropriate for me to be in the wiorkplace whilst this claim was on going.

 

To clarify, I work for a charity and I was volunteering as well as doing paid work. They have basiclaly told me I cannot volunteer and i will probably get no work either, so it looks like I have been dismissed with no notice nad without good reason. I have been employed since March 2011.

 

Can I add a claim for unfair dismissal into the current claim or would I need to make a new claim? Also do you think that their behaviour would go agains tthem at the ET?

 

Thanks

[becky2585]

You would need to make a new claim for unfair dismissal. Your solicitor should advise you on this.

 

How long did you work there?

[mariefab]

The other day I was told that it was not appropriate for me to be in the workplace whilst this claim was on going.

 

You need to discover whether this simply means that you are suspended (with pay) until the situation is resolved.

I suggest that you ask whether you have been suspended or dismissed in writing by recorded delivery.

[mariefab]

Dear me, I just had a look at your earlier threads.

 

Although you don't have a proper contract of employment, what documents do you have?

i.e. What does it say on any paperwork from the employer about your specific employment?

 

Do you have the option to turn down shifts as you chose?

Do you work (paid) the same days/hours each week?

If so, how long have you had this working pattern?

[wobbly]

Being dismissed for attemting to enforce an employment right such as holidays etc is a win win for you,get a claim in to tribunal immediatly.Your solicitor will suitably advise you.

[becky2585]

Being dismissed for attemting to enforce an employment right such as holidays etc is a win win for you,get a claim in to tribunal immediatly.Your solicitor will suitably advise you.

 

Only if the OP has worked there for over a year.

[Pusillanimous]

I would recommend either make an application to amend your tribunal claim, to bring it up to date to include possible constructive dismissal or detriment for a protected act, or submit a new one. This is very important. Let the tribunal worry about jurisdiction. Keep going in until they formally dismiss you (this will be easier to prove than constructive dismissal). If you do make a claim for the latter, make sure you spell it out in a written letter of resignation that you consider yourself to have been unfairly dismissed through constructive dismissal - giving reasons as spelt out - and do it reasonably promptly.

Edited January 17, 2013 by Pusillanimous

[stu007]

Hi

 

What we all need to clarify first is:

 

1. Has the Charity only ended their voluntary charity work only or

2. Has the Charity only ended their Paid Charity Work. or

3. Has the Charity ended both the Volutary work and the Paid Voluntary Work.

 

From the OPs initial post it does seem like the OP is unsure and if so would they would need to write to the charity for further clarification on this (always get proof of posting)

 

For the Paid Voluntary Work does the OP have a contract and if so what does it state and does the OP have payslips from the charity.

 

Although this is a Charity there are still charity laws as well as employment law they have to follow.

 

This is the link for The Charity Commission England and Wales very useful information their for you:

 

http://www.charity-commission.gov.uk/

 

For Scotland - Office of the Scottish Charity Regulator (OSCR):

 

www.oscr.org.uk/

 

This is the link to the ACAS Website:

 

www.acas.org.uk/

Edited January 17, 2013 by stu007

[Pusillanimous]

Bear in mind that even if you do not have a written contract of employment, if you were employed full time (over 16 hours per week {check this}) for over a year prior to April 2012, (two years, after this date), the employment contract is implied to exist even if you have not been given one, as per the Employment Rights Act 1997 (?) Sections 1-3.

 

It can be a grey area, but if your employer stipulates your hours of work, you attend their premises, and they pay you directly (as opposed to your invoicing them) then you can argue you are technically an employee. The key is how much control they have over your hours and movements.

[transient]

OP says in an earlier thread they have worked there since march 2011

[SNALF]

Guys just to remind you all that dismissal for asserting a statutory right is an automatically unfair dismissal and length of service does not apply so it doesn't matter when he started work.

[mariefab]

Agreed.

It would be an ERA 104 claim.

But there's no evidence, so far, that there has been a dismissal.

 

The ET3 confirms that the OP's employing is continuing.

The statement, 'I was told that it was not appropriate for me to be in the workplace whilst this claim was on going.' implies that once the claim is resolved the OP will return to the workplace.

So, it implies suspension not dismissal. ( Although a suspension could be considered a 45A(1)(e) detriment.)

 

Before submitting new claims or amending the existing one; the OP needs confirmation from the employer.

[becky2585]

Guys just to remind you all that dismissal for asserting a statutory right is an automatically unfair dismissal and length of service does not apply so it doesn't matter when he started work.

 

Not necessarily.

 

I believe when you review the statutory construction, it's only for employment statutory right asserted under Part X ERA or under the Equality Act 2010.

 

Unlawful deductions fall under Part II ERA and so do not count for automatic unfair dismissal purposes.

[SNALF]

In addition, can you confirm Father that you are on a zero hours contract? Only as you state that they will not 'offer' you any further work.

[SNALF]

Becky, section 104 is under Part X

[SNALF]

It's not the unlawful deduction, it's the ET claim which is a statutory right covered under S.104

[mariefab]

The dismissal (if indeed there has been a dismissal) would be automatically unfair because the reason for the dismissal was that the employee brought proceedings against the employer (the ongoing ET claim) to enforce a statutory right; the relevant right being in this case the s.13 right not to suffer unauthorised deductions (which is covered because 104 protects any right in the ERA for which a claim can be made to an Employment Tribunal.)

[SNALF]

Perfectly put Marie

[mariefab]

Thank you, I think so too.

However, I feel obliged to confess that the post started off as a rambling, incomprehensible discourse about 20 lines long.

[becky2585]

It is indeed under 104 ERA, which is part of Part X ERA.

 

Working from memory alone with reference to long and complicated statutes doesn't necessarily always pay

[SNALF]

Aww I know what you mean Becky. Even stuff I deal with daily can sometimes make me doubt myself and I have to go off and check! It's such a minefield

[Pusillanimous]

The OP needs to clarify if he or she is classed as an employee. In a recent ruling in the Court of Appeal, it was stated:

 

In Stringfellow Restaurants Ltd v Quashie the Court of Appeal ruled that a lap dancer was not an employee and, therefore, unable to pursue an unfair dismissal claim. The essential ingredient to give rise to an employment relationship was missing, i.e. the mutuality of obligation on the employer to provide and pay for work and for theindividual to accept that work. 11.1.2013 http://www.thehrdirector.com/legal_updates/legal-updates-2013/january-2013/lap-dancer-was-not-an-employee/

[SNALF]

Agreed Pusillanimous, but her case was won on appeal and remitted back to ET. And she had far less of a relationship with the employer than a zero hours worker does as she had registered for tax as self-employed with HMRC and she paid the club to use their facilities rather than them pay her for her work.

[Pusillanimous]

Agreed Pusillanimous, but her case was won on appeal and remitted back to ET. And she had far less of a relationship with the employer than a zero hours worker does as she had registered for tax as self-employed with HMRC and she paid the club to use their facilities rather than them pay her for her work.

 

In the meantime Stringfellows appealed to the Court of Appeal (as per judgment quoted 11.1.13) and the CoA overturned the EAT, so it won't be going back to the ET. Ms Quashie is continuing to claim she was an employee because Stringfellow controlled where and when she worked - says she will take it to the Supreme Court - even though her contract of employment classed her as being respobsible for her own tax and NIC.

 

As you know, the government are trying to prohibit IRS35 workers (self-employed) claiming to be self-employed and also getting a tax-benefit by paying company tax instead of Income Tax by sending an invoice, when the reality of the situation is that they are to all intents and purposes employees, subject to the control of the employer.

 

If the OP was doing a lot of voluntray work, I can foresee it might be a grey area.