Long term casual worker and sending of P45

[ericsbrother]

you know when a small child asks you "why does it rain" and you explain about clouds etc and they ask agin "yes, but why?" it is nothing to do with wanting to know about the answer for the subject but just to keep your attention solely upon them.

So, OP tell us when you win your court case but in the meanwhile find yourself another job

[resources]

1.

My reply to Emmzzi is that it is not an academic debate. I am really envisaging a claim in the ET.

 

2.

My reply to steampowered is that the part of law

“They may be a fixed-term employee if they’re:

• a seasonal or casual employee taken on for up to 6 months during a peak period

• a specialist employee for a project

• covering for maternity leave”

 

makes reference to

 

“taken on for up to 6 months during a peak period”

 

So it could not have been used as an example and could not be misleading because a fixed term contract can last more than six months so the legislation covering it should exist but maybe in a different legislation that this which has been amended

 

3.

If we cannot find the legislation which concerns a part of a law to which it is made reference in a governmental website it will be a legal oddity and a legal philosophical issue concerning access to legal knowledge

 

4.

An important additional point is that the disciplinary procedure for casual workers that my employer made me sign contrary to other disciplinary procedures considers as acts of misconduct underperformance and bad quality of work

[Emmzzi]

see if you can get a no win no fee solicitor to take your case, and then you will have a better idea of your chances.

[steampowered]

I gave you a link to the actual law which clearly states what a fixed term contract is. Unfortunately you are reading far too much into the general statement made on the .gov.uk website. A fixed term contract means exactly what it says on the tin - no more no less.

[resources]

The issue is where the

 

"for up to 6 months"

 

come from?

 

I do not think that governmental websites invent legislations which do not exist

[Good Sister]

Well, you wanted to be known as "a specialist employee for a project" earlier on in this thread, so the statement of "a seasonal or casual employee taken on for up to six months during a peak period" is surely not part of your argument against your former employer? Which do you now want to be known as?

 

The gov.uk link is intended to be quite generic and simple for laypersons. The part you are referring to are just a few examples of how a person can work out if they are in a fixed-term contract. That's all they are, examples. As you looked at the gov.uk link, I assume you also looked at https://www.gov.uk/fixed-term-contracts/renewing-or-ending-a-fixedterm-contract as part of the same link. Again, whilst put in simple terms, it does show that it does boil down to the wording on your contract and whether the employer gave themselves room to end the contract early.

 

To be able to put your case forward in the best possible way, you really need to have a read of the link steampowered posted as it will be the finer detail that you will need to refer to, not just the gov.uk website.

 

I am not a legal expert, but there are plenty of knowledgable people who have commented on your thread advising you that if you are really that determined to put in a claim, then do so, but to be prepared not to expect the outcome you are hoping for.

 

Whilst fixed-term employees are able to enjoy many of the same privileges as permanent employees, they are also subjected to the same pitfalls as permanent employees. This includes being dismissed for poor performance within the first two years of being with the employer.

[resources]

1.

In the website of the government

 

https://www.gov.uk/fixed-term-contracts/what-counts-as-a-fixedterm-contract

 

it is stated what is not a fixed-term contract for example agencies contracts. However it not stated that zero hours contracts cannot be fixed term contracts

 

2.

The EU Directive defines a fixed-term worker as someone

 

“having an employment contract or relationship entered into directly between an employer and a worker where the end of the employment contract or relationship is determined by objective conditions such as reaching a specific date, completing a specific task, or the occurrence of a specific event”

 

We notice the

 

“employment contract or relationship”

 

does this mean that in order to have a fixed-term contract we do not need to have a written contract with the date of the end on it and that a simple ‘relationship’ could been enough for example me working in project?

 

3.

Which law prevent employers from using zero hours contracts like fixed term contracts to avoid the legislation on less favourable treatment?

[steampowered]

A fixed term contract is simply a contract where both parties have agreed to a fixed term of employment.

 

There is really no magic to this.

[resources]

The Employment Appeals Tribunal in “Pulse Healthcare Ltd v Carewatch Care Services Ltd & Ors (2012”) determined that employment contracts must reflect the true nature of the employment. Zero hour contracts are meant to be a casual arrangement to enable employers to cater for changing levels of demand. However if a worker on a zero hour contract regularly works the same hours, then their employment contract reflects this, regardless of what their written contract states. We may have to do the difference between a short and a long project. In my case the project in which I was working was intended to last two months with regular hours. We can say that in theory the people working on it could refuse shifts but they would have been done this too often they would have been removed from the project. Hence the question is to know what kind of contract it was in a reality zero-hours contract or a fixed-term contract?

[steampowered]

The default position for employment contracts in English law has always been 'termination at will', subject to the notice periods and protection against unfair dismissal provided for in the Employment Rights Act 1996.

 

I think you would need something quite specific to have a fixed term contract - such as specific statement from the employer saying that it agrees to employ you for the full duration of the project.

 

It is possible to vary contracts by conduct (for example if you always work the same hours), but it doesn't sound like you have any evidence of past conduct to rely on in your case since this was presumably the first project you worked for this employer. You'd only be able to rely on conduct in a manner similar to the Pulse Healthcare case if, for example, you had worked many previous contracts for this same employer and you had always been employed for the duration of the project for those previous projects.

[resources]

The Pulse Healthcare case is similar to my case but is not entirely the same because in this case the issue was whether a zero hours contract has become a permanent contract but the issue in my case is different because it is whether a zero hours contract was in reality a fixed term contract.

 

I have difficulties to understand what interest could have an employer in using fixed term contracts instead of zero hours contract because with a zero hours contract he can dismiss the worker in the middle of a project by simply not giving him anymore work but not with a fixed term contract because if he does so he will be in breach of contract. Hence a tendency that employers could have is to use zero-hours contracts as fixed term contract to avoid the disadvantages of fixed term contracts. However as I explained in my previous post what matters is not only what is stated in a contract but the true nature of the employment i.e. what has really happened.

[steampowered]

An employer can have whatever type of contract he wants to have. He doesn't have to use a fixed term contract. You could only demonstrate that a fixed term is 'what really happened' if there was an actual agreement from the employer to keep you for the fixed term. Otherwise I'm afraid this point of attack is a bit hopeless and you'd be better off putting your energy into finding a new job.

[resources]

The important question is whether my employer was allowed to discipline me without going through the disciplinary procedure about casual workers that he made me signed

[Emmzzi]

dunno; ask an ET

[resources]

It is not possible to make queries to the ET before issuing a claim and paying the court fee. This kind of important issue could be clarified only in a conversation in a forum

[steampowered]

The important question is whether my employer was allowed to discipline me without going through the disciplinary procedure about casual workers that he made me signed

You've already had the answer to this. The answer you've been given is that, given your short period of service, the employer was entitled to dismiss you without giving notice (unless there is a notice period provided for in your employment contract) and was entitled to dismiss you without going through the formal disciplinary procedure.

[Good Sister]

It is not possible to make queries to the ET before issuing a claim and paying the court fee. This kind of important issue could be clarified only in a conversation in a forum

 

This could also be clarified by a no win no fee solicitor.

[Emmzzi]

It is not possible to make queries to the ET before issuing a claim and paying the court fee. This kind of important issue could be clarified only in a conversation in a forum

 

But it is not being clarified because you are just asking the same question over and over, but ignoring the answer.

[resources]

It is a forum so it is better to put aside solicitors even on a no win no fee basis.

 

If you have already given me the answer to the important question of whether or not my employer could discipline me without going through the disciplinary procedure for casual workers can you remind it to me?

[honeybee13]

resources.

 

You've already had the answer to this. The answer you've been given is that, given your short period of service, the employer was entitled to dismiss you without giving notice (unless there is a notice period provided for in your employment contract) and was entitled to dismiss you without going through the formal disciplinary procedure.

 

HB

[resources]

Yes I understand that my employer was able to dismiss me without giving me any notice because I worked for him less than one month. However I do not understand what this has to do with the disciplinary procedure.

[resources]

I have been doing research in a library and I have made the following findings:

 

1.

We can claim for damages for the work that we have done and for which we have not been paid but also where although the worker has been ready to render the work or service under the contract, but the employer has prevented the worker from doing so (Miller v Hamworthy Engineering Ltd).

 

2.

Question 1 means that I can claim for the work that I could have done until the end of my project and maybe also for the additional work that I could have done if work on other projects would have been offered to me if I would not have been removed from this project.

 

3.

The disciplinary procedure that my employer made me sign is in a separate document and maybe that means that it has been incorporated in my contract of employment.

 

4.

There are policies and procedures which are ‘workplace rules’ that the employer can modify without the worker’s consent and I think that the separate disciplinary procedure for casual workers that my employer made me sign does not fall within this category.

 

5.

We can think that I am entitled to no damages for breach of contract because even if I would have been put through the disciplinary procedure and the procedure would have failed my employer had nevertheless no obligation anyway to give me work because I was in a zero hours contract. However we can think that the fact that my employer put me through the disciplinary procedure implies that if the procedure used against failed my employer would have given me work on this project until this project was completed. Otherwise this disciplinary procedure would have no meaning at all.

 

6.

What I say in question 6 above means also that by making me signed this disciplinary procedure my employer could have turned my zero hours contract into some kind of fixed term contract for the duration of the project which can be terminated early only in case of misconduct

 

7.

According to the new Exclusivity Terms in Zero Hours Contract (Redress) Regulations 2015 workers in zero hour contracts cannot be dismissed if they breach an exclusivity clause and they can claim for dismissal even if they do not have the two year continuity of service. This means also that a worker can be dismissed even if he is in a zero hours contract and the employer does not have any obligation to give him work. In this circumstance the question that I have is what need has an employer to ‘dismiss’ a worker in a zero hours contract if he can simply not give him work anymore?

[becky2585]

Why don't you just post a copy of the disciplinary procedure on here?

[resources]

I can't do this because of a question of confidentiality. However I have already in another post put forward the title of this disciplinary procedure which makes mention to 'contract'

[honeybee13]

What number post please so we don't have to search?

 

HB