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    • Hello,

      On 15/1/24 booked appointment with Big Motoring World (BMW) to view a mini on 17/1/24 at 8pm at their Enfield dealership.  

      Car was dirty and test drive was two circuits of roundabout on entry to the showroom.  Was p/x my car and rushed by sales exec and a manager into buying the mini and a 3yr warranty that night, sale all wrapped up by 10pm.  They strongly advised me taking warranty out on car that age (2017) and confirmed it was honoured at over 500 UK registered garages.

      The next day, 18/1/24 noticed amber engine warning light on dashboard , immediately phoned BMW aftercare team to ask for it to be investigated asap at nearest garage to me. After 15 mins on hold was told only their 5 service centres across the UK can deal with car issues with earliest date for inspection in March ! Said I’m not happy with that given what sales team advised or driving car. Told an amber warning light only advisory so to drive with caution and call back when light goes red.

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      Many thanks 
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    • Housing Association property flooding. https://www.consumeractiongroup.co.uk/topic/438641-housing-association-property-flooding/&do=findComment&comment=5124299
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    • We have finally managed to obtain the transcript of this case.

      The judge's reasoning is very useful and will certainly be helpful in any other cases relating to third-party rights where the customer has contracted with the courier company by using a broker.
      This is generally speaking the problem with using PackLink who are domiciled in Spain and very conveniently out of reach of the British justice system.

      Frankly I don't think that is any accident.

      One of the points that the judge made was that the customers contract with the broker specifically refers to the courier – and it is clear that the courier knows that they are acting for a third party. There is no need to name the third party. They just have to be recognisably part of a class of person – such as a sender or a recipient of the parcel.

      Please note that a recent case against UPS failed on exactly the same issue with the judge held that the Contracts (Rights of Third Parties) Act 1999 did not apply.

      We will be getting that transcript very soon. We will look at it and we will understand how the judge made such catastrophic mistakes. It was a very poor judgement.
      We will be recommending that people do include this adverse judgement in their bundle so that when they go to county court the judge will see both sides and see the arguments against this adverse judgement.
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      This is good ethical practice.

      It would be very nice if the parcel delivery companies – including EVRi – practised this kind of thing as well.

       

      OT APPROVED, 365MC637, FAROOQ, EVRi, 12.07.23 (BRENT) - J v4.pdf
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Employment Tribunal this week. All help appreciated!


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Hi,

 

I would be grateful if someone can give me a better insight into this matter.

I will try to simplify it.although its a little complex:

I have a Full merits hearing set for next Thursday.

 

The respondent's team tried to strike out both my claims:

Unfair Dismissal- due to lack of continuous service

I only received a contract in May 2012, although I have written evidence that I was to receive a 'salary' from April 1st..and my April pay is not a round figure..suggesting deductions were made. I had prior to that, been working full time, self-employed.

 

Unlawful Deduction of Wages-due to the claim being Out of Time

My claim relates to a proportion of commission that was not paid. My argument is that the contract did not set a deadline for payment..and even after part of it was paid, the MD at least promised to look into it. I made the claim within 3 month of my final salary payment.

 

Last week, they turned up to the Preliminary Hearing late and unprepared, so the judge decided to proceed to a full hearing which would deal with the preliminary issues as well.

 

I have irrefutable written evidence that my commission claim is justified. (due to a last minute witness whose participation in effect forced disclosure).

 

The other side have offered to settle on a figure based on this commission..but not the Unfair Dismissal.. My original ET1 claim and subsequent settlement proposal amounts to about 1/5 of the total schedule of loss...so I think its pretty fair.

 

The original bundle included meeting notes that had been altered by the Respondent... Upon hearing that the original note-maker (currently still working for the Respondent) may be appearing as a summonsed witness, they resubmitted the notes in their correct version...both sets are in the bundle:further indisputable evidence of dishonesty...

 

The danger is, that I may not win on the preliminary issues, despite the evidence confirming my claims are justified..

 

If the preliminary issues are borderline, would the actual facts regarding the veracity of the claim and the dishonesty of the Respondent have an impact on the panel ruling in my favour (on the preliminary issues)?

 

The commission issue is a formality if the Judge rules that it was In Time.

 

Unfair Dismissal is more complicated:

Despite being Head and the most experienced member of my Academic department, I apparently came bottom of a dubious test, that the Respondent designed himself, meaning that I was chosen for redundancy despite being willing to take a teaching role at the same pay rate as my staff. The test showed that other staff had 0% lateness and 0% sickness and also scored me lower on teaching skills, despite no actual observations having been done.

 

I did question the scoring, but never got a clear response.

 

The Respondent has included many documents in the bundle to try to discredit me. Some of the allegations are fair, others are not.

Can I perhaps use those allegations in my favour to suggest (as I believe) that I was made redundant because of these issues? I have other evidence to back up my credibility including an excellent reference from my current and previous employer..and an award won by the dept I managed...

 

 

Many thanks!

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Hi and welcome

 

My initial thoughts are that the Respondent's request to strike out the UD claim may have merit. In order for the claim to succeed on anything other than for a protected characteristic, you must be both an employee and have two years service - that being the case, service from April 2012(?) would be insufficient for that part of the claim to be heard.

 

On the Unlawful Deductions aspect of the claim, providing that the commission entitlement can be demonstrated either by contract, demonstrable agreement or custom and practice, you have a strong claim, providing that the claim was lodged (as it seems to have been) within three months of the payment becoming due. The Respondent appears to have admitted that there was an entitlement - or is at least prepared to settle.

 

Subject to clarification that you do not have the requisite two years service for the ordinary Unfair Dismissal claim, you may wish to consider trying to get the Respondent to increase the settlement to something more in line with what you should have received. Have you been threatened with a Costs order if you proceed to a full merits hearing?

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

 

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Thanks for the reply. My understanding is that the 2 year rule came into play from April 6th. However, I have in writing that my new 'salaried' role was due to start from April 1st. So I did have the 1 year service required I presume?

 

I have 'implicitly' been threatened with a costs order in the form of a 'Without Prejudice Save as to Costs' settlement offer.

 

But bearing in mind the following, I think it unlikely:

The Preliminary Hearing was adjourned due to the Respondent being late and he and his aid being unprepared.

Evidence proves that my commission claim is true.

The Respondent has altered consultation meeting notes. Again, undeniable given the written evidence and different versions both submitted by him.

The Respondent suspended my line Manager on the morning of the pre-hearing (having assumed he was giving me help). Then, when I asked the judge about summonsing a witness who was still working and didnt wish to be compromised, the Respondent, questioned the validity of evidence from someone undergoing disciplinary action (giving away that he knew exactly who I was talking about..and calling into question the last minute suspension)

 

In addition, his solicitor included documents from another case in the original bundle..

She has contacted one of my witnesses, without revealing she is on the Respondent's side..

 

What do you think?

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I dont have a wageslip for the specific month in question, but I have a set of emails disclosed between my manager and the MD that clearly shows that he agreed to a yearly salary figure..and a 1st April start date.. He later orally claimed that he assumed it would still be on a self-employed basis, but that was not the understanding the either my manager or I had. One assumes that a yearly salary figure with set, full time hours, and a Middle Management role would unambiguously mean employment?

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It may provide the evidence you need.

 

Look at the tax to date to see if it shows significantly more than the tax deducted in May.

Also, if it just covers basic pay and the net total is the same as that received in April, it would confirm that your 'employment' (in the context of employee status) began on 1st April.

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The problem is that the MD claimed that his understanding was that the 'salary' would be paid on a self-employed basis, pro-rate..even though it was full time..It was only when I demanded a contract, that one was given..but he refused to sign it retrospectively (clearly with the change of law in mind!!).. but the boss who offered me the agreement understood that I would be employed..and that was the intention of the offer..and the email evidence does not mention self-employed/pro-rate etc...

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I have emails making it clear that my new arrangement and salary would start from 1st April. The MD was away until May, but he gave a written response to my boss acknowledging his authorisation. It was on his return that he claimed that the 'salary' figure was actually still on a self-employed basis..However, there is nothing in writing to prove that and he did give me a contract..but refused to make it retrospective.. The point is about the intention...

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OK, in order to evidence the intention...

 

In these emails, is it made absolutely clear that you are being offered a change of position from self-employed to employee?

If so, does the written response from the boss pre-date 1st April 2012?

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Because you put it in quotemarks, I assume that 'salary' appears.

This is in your favour because employees receive salary, whereas the self-employed receive payment for services.

(Unless there is earlier documentation that they called your pay salary when they considered you to be self-employed.)

 

Look for phrases like: contract/terms of employment, holiday entitlement and anything else that suggests employee.

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Point out that the date on the contract isn't definitive - you have evidence you were an employee from April 1. The employer is obliged to provide a written statement of particulars of employment within two months - not the first day. They simply provided you with the contract within two months in line with their legal obligation, rather than on the first day.

 

Of course if the contract says your continuous employment ran from May, that could be more problematic, particularly if you signed to demonstrate your agreement.

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Apologies - had misread the '2012' on my phone :oops:

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

 

PLEASE HELP US TO KEEP THIS SITE RUNNING

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the contract does state May, but the Employer claimed that it would not be legal to retrospectively sign the contract.

 

I have an email from my boss to the MD which clearly states 'the salary is payable from April 1st' and his response confirms he is happy with this. Sure this is enough??

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the contract does state May, but the Employer claimed that it would not be legal to retrospectively sign the contract.

 

I have an email from my boss to the MD which clearly states 'the salary is payable from April 1st' and his response confirms he is happy with this. Sure this is enough??

 

But playing devils advocate, was there then a subsequent variation to the contract, which you signed your agreement to? Did you query at the time why no tax or NI was paid on your wages?

 

The first place the tribunal will look is the written contract - the burden will therefore most likely be on you to somehow prove the real date when you started employment.

 

Do you have any other evidence? I'm not trying to be overly negative here - more prepare you for what you're going to be facing!

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'the salary is payable from April 1st' certainly helps.

 

Have a look at this link.

 

http://www.hmrc.gov.uk/employment-status/index.htm#1

 

Although whether, or not, you were self-employed for tax purposes is not exactly the same as whether you were for employee status purposes, but the test is similar.

The indicators in the link like mutuality of obligation, right of control etc. are the things that you should point out to the Tribunal to evidence your status before April/May 2012, so that you can bring that earlier period into the calculation of the length of your service.

 

So, make a list of as many specific examples as you can. Don't disregard examples because you feel you are being repetitive.

For example, you say that you were the head of an academic department, so under the 'part and parcel' section you could list:

the employees who reported to you,

you worked at the employer's premises,

you were mentioned in the employer's internal/external publications, websites etc.

 

Basically, you need to show that, regardless of the status label used by both parties at the earlier time, you were really an employee for the whole period of employment.

You just paid your own tax etc. at first.

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Thank you Marie!

Yes, in the adjourned Preliminary Issues Hearing, the Judge already made it clear that 'labels' were not important and having heard my evidence, gave the Respondent a stern look. They were unprepared and this is why the case is going to a full merits hearing which will also hear the preliminary issues again.

I went already went through a similar list with the judge and in fact I could claim as far back as 2011 that I was an 'employee'. The only contradiction being that I gave invoices and paid my own tax. Would those two factors be enough for the other side to argue I was not an employee?

I had set hours, lunch break, used the College's equipment, had to report if I was sick, couldnt contract out the work...could be given a variety of tasks...was even sent abroad! And was in charge of 7 staff (from March)

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Just presenting invoices and paying your own tax are not enough to prove self-employment.

 

The few items in your last sentence are a start for your list of indicators of employee status.

Flesh them out and give as many examples as you can for each category.

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Concentrate on mutuality of obligation (you couldn't turn down work and they had to offer it at set times), personal service (ie not able to send a substitute) and control (where when and how you worked) as they are the most important factors.

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If you were paying your own tax, did you declared yourself as self-employed on your tax assessment? And perhaps registered as self-employed in order to pay Class 2 and Class 4 contributions? My understanding is that you can only sort your own tax by registering as self-employed in the first place. You need to think about how you will address these points if you get probed on them.

 

Similarly, you'll need to think about how you explained the fact you issued invoices but were still an employee. Its very unusual for an employee to issue invoices.

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If you were paying your own tax, did you declared yourself as self-employed on your tax assessment? And perhaps registered as self-employed in order to pay Class 2 and Class 4 contributions? My understanding is that you can only sort your own tax by registering as self-employed in the first place. You need to think about how you will address these points if you get probed on them.

 

Similarly, you'll need to think about how you explained the fact you issued invoices but were still an employee. Its very unusual for an employee to issue invoices.

 

In cases where the 'label' was self-employment, but the reality of the Claimant was that of an employee, surely the Judge would not penalise the Claimant for paying their tax according to HMRC rules? Otherwise it would mean that one would be better off had they not paid their tax? If the company refused to give a contract, despite the conditions of employment being the same as that of an Employee, surely it is their responsibility?

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