ET date set - few questions RE Worker status and loss of rights

[k13 wjd]

Ok, i'll cut a long story short.

 

Worked for a company for a year, never got paid holidays, was paid under the CIS scheme. Had a pre-hearing last month, and the ET judge ruled "worker" status, and as such indicated i was entitled for 3 months worth of holiday pay.

 

Full hearing date now set - I'm wondering if there can be any loss of rights compensation for a person with worker status ?

 

Thanks in advance !

[steampowered]

More info needed about the circumstances. If the only issue is notice pay then there is no claim for loss of rights. If this is an unfair dismissal claim then there might be - but of course that would become a bit redundant if you now have the required 2 years of service with another employer.

[becky2585]

...but unfair dismissal claims are not open for workers in any event, so I don't think there's any additional compensation here.

 

Hopefully with a judgment like this in your favour they will now just settle - they now have no real defence to the claim!

[k13 wjd]

I'll expand a little.

 

The original claim was for automatic unfair+constructive dismissal, on the grounds of a major health and safety issue.

 

The pre-hearing was to decide if i was employed or self employed - hence the worker status.

(I REALLY wish the outcome was employed, i could have proved their witness statements as false!)

 

Not 100% sure i agree with the worker status, but then i guess i am biased. there was a 6 week period of sickness during my employment - which was related to an accident at work - but the ET judge ruled this was a contract period for some reason.

 

Anyway, the ET judges ruling of worker status ONLY entitles me to holiday pay that i would have been entitled to, and is limited to 3 months ( being counted from the termination of work)

 

They DID try to settle out of court, but wanted me to sign a non-discloure doc AND a seperate compromise aggreement. Through acas, i suggested a figure of settlement that was a little less than double 3 months holiday pay. Any employer with a breif would have settled on the spot at that figure - they have 10 guys working with them, and it was very much in their intrest to keep this away from the 10 guys working for them who ARE entitled to holiday pay !

 

they offered me a sum a little over my entitlement - which i strongly refused. Without giving out details relating to the employer, i was consistantly berated for the period of time i worked there, and was submitted to very dangerous working conditions. I'd much get a minimum payout, but force the company into paying all guys holiday pay !!!

 

So, back to my question - Loss of rights - I really can't seem to find much info on if a person with worker status can claim for loss of statutory rights during an ET.

[becky2585]

No, you can't claim for loss of statutory rights as a worker.

 

It sounds to me as though you are still in the mindset of bringing a constructive dismissal claim - which the Judge has now said you can't do. Therefore, the only relevant matter is the holiday pay issue.

 

I would be very careful moving forward - if they have now offered you the full value of your claim in settlement, you could well be in danger of a costs award if it moves to a final hearing if you unreasonably refused the full amount!

[k13 wjd]

I 'THINK' i was reasonable in the refuasl - I refused the payout via ACAS, as they wanted me to sign a compromise agreement, which could/would have been detrimental to a future personal accident claim.

 

Their offer was circa £50 above the amount the ET judge suggested i am entitled to. I'd rather still have the right to claim a PI, and still have the right to tell whoever i like that they are entitled to annual leave.

 

Thanks for your input becky - though i'm wondering if you can reference the inability to claim loss of rights as a worker.

 

I need to read over the judgement again to make sure i'm not missing something.

[becky2585]

I don't know which exact legal provision governs loss of statutory rights, but I do know that it is only heads of damages which are available for unfair or constructive dismissal claims, so logically you cannot claim it in relation to holiday pay alone. It is an award which is made essentially to reflect the fact that an employee needs to "start again" in accruing full employment rights after being unfairly dismissed.

 

Just so that you are aware, it is impossible in law to compromise a personal injury claim that you are not already aware of. So if for example you developed asbestosis as a result of your employment, you could still sue them. However, if you broke your leg at work a year ago, clearly you would be aware of such a claim now and that could be validly compromised by a Compromise Agreement.

 

Confidentiality clauses are standard in most settlement agreements - if you wanted that removing, you would need to significantly compromise on the amount you are settling the claim for - but as its so low value, that probably isn't possible. I suppose you could try and explain your reluctance to sign up to confidentiality provisions to a Judge, but they are more likely to be bothered about the financial value than the actual settlement terms and could still find you were being unreasonable in refusing an offer which was more than the claim was worth!

 

At this stage, the correct way to deal with a settlement is via COT3 agreement, rather than via a Compromise Agreement. I am not sure why they have indicated they want a Compromise Agreement!

[k13 wjd]

Thanks for that info.

 

I think they want a compromise agreement to stop any PI claim which i could make after an incident last year which we are both already aware of.

 

I presume any award made by the ET at the full hearing has no compomise/confidentiality agreements included ?

[becky2585]

Ah I see.

 

The ET judgment would be a matter of public record, so no confidentiality obligations attached. If you are contemplating a PI claim against them, it would be worthwhile speaking to a solicitor to see if the claim is viable.

[k13 wjd]

Just one more. Just doing my Schedule of loss for the hearing next week.

 

I know that a ET will normally make an award based on the net values ( I.e after tax etc has been removed)

 

I intend to ask for the award to be GROSS, based on the fact that i did not pass my personal allowance in the taxable year in question. My tax return is in hand, so i can prove that any tax that i would have paid on the holiday money would have been paid back in my rebate......

 

As such, by being paid NET, i would lose out, but by being paid GROSS i would not.

 

Any ideas ?

[k13 wjd]

Right, ET on Friday, Already had prehearing to determine worker status, and as such, am entitled to 3 months holiday pay.

 

Bearing in mind that in the tax year that is relevent, i did not go over my allowance, and the holiday payment would NOT take me over it, Is it reasonable to request the ET to award the payment GROSS

 

 

Thanks in advance

[honeybee13]

Hello there.

 

I'll merge this with the existing thread you just added to. It will keep all the information together and make life easier for the people advising you.

 

My best, HB

[k13 wjd]

Cheers - i couldn't see this one to begin with, hence the double post.

 

I've also got a question about this 3 month rule having been classed as a worker- the ET has suggested that i can only claim holiday pay of 3 months - Best way to calculate 3 months for means of the SOL ? 90 days ? 12 weeks ?

[honeybee13]

Cheers - i couldn't see this one to begin with, hence the double post.

 

I've also got a question about this 3 month rule having been classed as a worker- the ET has suggested that i can only claim holiday pay of 3 months - Best way to calculate 3 months for means of the SOL ? 90 days ? 12 weeks ?

 

If you can't see what you just posted, try hitting the Refresh button on your browser, that works for me.

 

HB

[becky2585]

I believe the only way you can get a gross payment is if you were paid gross by your employer and then paid your own tax and NI.

 

The only experience I've had of "grossing up" was where the payment had hit the maximum compensatory award, but that was a few years back and I believe Tribunals are no longer permitted to do that if the worker or employee was paid net.

 

You could always take in two calculations, one net and one gross, and let the Judge decide. Ultimately a schedule of loss is only guidance, so the Tribunal will award whatever it sees fit.

[k13 wjd]

Yeah, my SOL ( which forms the vast majority of my paperwork bundle) includes both calculations, but justifiys the gross payment with a copy of my income tax statement.

 

Surely the award should reflect my ACTUAL loss ?

 

This is going to be a quick ET hearing. Essentially the only thing i'm now entitled to is holiday pay.......Which is a shame, as the respondents statements are FILLED with lies from the word go....Lies which they themselves have proven to be ( 2 statements from them, which vastly contradict each other!)

 

Any way, thanks for your help !

[k13 wjd]

Also - can i lodge a data protection request AT the ET hearing ?

 

Or am i pushing my luck ?

[becky2585]

No, it's pointless - the ET can't deal with a data subject access request.

 

If you want to do it, write to them direct.