Long term casual worker and sending of P45

[steampowered]

1.

The thread to which you could have maybe replied before concerns a different issue which was whether or not an employer could remove from a project a casual worker for poor performance from a project without going through the contractual disciplinary procedure which says that poor performance is an offence?

You are correct, that thread is coming back to me now! May I ask if this thread is about the same employer and same dismissal? Or something different?

 

2.

I have looked in the Internet and I found nothing which says that an employer has an automatic right to fire an employee after one month. Statute says that if an employee has not two years service he could be dismissed but this is statute and not contract law.

The contract law position under common law was always 'termination at will' - i.e. that a contract of employment could be terminated at any point by either party without prior notice, subject to any contractual agreement to the contrary.

 

The common law position was modified by statute, which implemented minimum notice periods as set out here, applicable only to employees with more than one month's service: http://www.legislation.gov.uk/ukpga/1996/18/section/86.

 

However in the contract law there is the law on ‘offer and acceptance’ which says that when an offer is made and it has been accepted it becomes binding. Therefore when my employer offered me a two-week project and I accepted it according to this law it was binding and unless there is a clause in the zero hours contract which says that my employer reserves the right to withdraw an offer of work even if it has been accepted by the casual worker it seems to me that my employer could not have removed me from the project unless I myself frustrate the contract by being myself in breach of contract because for example my poor performance

A legally binding contract requires offer and acceptance; consideration; and intent to create legal relations. To have a contract to work for the full duration of the 2-week project you'd have to prove that the employer offered to keep you employed for the full duration of the project, you accepted, and that you both intended to be legally bound.

 

As the default common law position is 'termination at will', I think the burden of proof would be on you to prove that the employer agreed to keep you for the entire project (rather than up to the employer to prove that it reserved the right to dismiss you at any time).

 

I think you would struggle unless you could prove that the employer explicitly promised to retain your promises for the whole project.

 

The other aspect of this you'd have to grapple with is the parol evidence rule - i.e. you generally can't use evidence of an oral agreement to contradict a written contract.

[resources]

1.

It is a different employer and a different contract and it raises a different issue

 

2.

You say that the contract law position under common law was always “termination at will' - i.e. that a contract of employment could be terminated at any point by either party without prior notice, subject to any contractual agreement to the contrary. However the important point is that in my contract there is a clause which says that it is not an employment contract and does not confer any employment rights on me other than those to which workers are entitled. In this circumstance does the “termination at will” rule is relevant in the same way concerning the default common law position and the burden of proof to which you make reference?

 

3.

You make reference to the ‘parol evidence rule’. However in my case the offer and the acceptance was made by emails and not orally so it depends on the contents of our exchange of emails

In his email my employer makes reference to a project which will be around two weeks long and asked me if I will be available. The fact that he makes reference to the length of the project what he was not obliged to do and just after askws me if I am available suggests that he offered me a two-week project and not only several hours of work and it is what I have accepted

 

4.

I heard that what has been offered and accepted depends of the expectation of the parties and because in my contract there is no clause which says that the employer reserves the right to withdraw any offer of work at his discretion and he makes reference to the length of the project I expected that I will do the entire project unless I did something wrong.

 

5.

Another important point is that in my contract it is made reference to “work or hours of work” what means that my employer himself makes a different between “work” and “hours of work”. And because in the email of my employer it is not made any reference to a specific number of hours I expected that what was offered to me was not a limited number of “hours of work” but “work” i.e. a project.

[ericsbrother]

what you write is utter cobblers, you dont have a contract that gives you anything and that is that. arguing about the minutiae of contract law is pointless as employment law has its own rules and the employer has the whip hand so get over it.

perhaps you should really start to think about why no-one wants to give you a job, or a flat, or a degree.... You rub people up the wrong way and wonder why this happens all the time.

Apply for a job, if successful at interview accept it and get on with the job and keep yourself to yourself, go home and start again the next day in the same way.

[resources]

I would like to add the following

 

It seems to me what is meant in contract law by ‘an offer’ is something of specific i.e. something that we can count and not a vague promise. Therefore either a number of hours of work or a project and because in the email of my employer it is made reference to a project and not to a specific number of hours I thought that I was offered a project

[steampowered]

2. You say that the contract law position under common law was always “termination at will' - i.e. that a contract of employment could be terminated at any point by either party without prior notice, subject to any contractual agreement to the contrary. However the important point is that in my contract there is a clause which says that it is not an employment contract and does not confer any employment rights on me other than those to which workers are entitled. In this circumstance does the “termination at will” rule is relevant in the same way concerning the default common law position and the burden of proof to which you make reference?

The same "termination at will" rule would apply to service contracts as employment contracts.

 

3. You make reference to the ‘parol evidence rule’. However in my case the offer and the acceptance was made by emails and not orally so it depends on the contents of our exchange of emails. In his email my employer makes reference to a project which will be around two weeks long and asked me if I will be available. The fact that he makes reference to the length of the project what he was not obliged to do and just after askws me if I am available suggests that he offered me a two-week project and not only several hours of work and it is what I have accepted

This is a matter of interpretation as to whether you were offered a service contract with a fixed term of 2 weeks, or simply a bog standard service contract which can be terminated by either party at any time. The latter would be assumed unless you have very clear evidence to the contrary.

 

4. I heard that what has been offered and accepted depends of the expectation of the parties and because in my contract there is no clause which says that the employer reserves the right to withdraw any offer of work at his discretion and he makes reference to the length of the project I expected that I will do the entire project unless I did something wrong.

Contracts are interpreted according to what a reasonable observer would have understood the parties to have agreed. Additional terms do not get implied into the contract unless they are absolutely necessary. Unless you have evidence of a clear, express agreement to the contrary, the default rule of "termination at will" will apply.

 

5. Another important point is that in my contract it is made reference to “work or hours of work” what means that my employer himself makes a different between “work” and “hours of work”. And because in the email of my employer it is not made any reference to a specific number of hours I expected that what was offered to me was not a limited number of “hours of work” but “work” i.e. a project.

I don't understand the point you are making, I do not feel able to comment on this unless you are able to provide the exact, precise wording which appears in your contract. It is perfectly possible for an employer to offer you a service contract which will involve working on a particular contract without undertaking to keep you for the entire duration of the project.

 

It seems to me what is meant in contract law by ‘an offer’ is something of specific i.e. something that we can count and not a vague promise. Therefore either a number of hours of work or a project and because in the email of my employer it is made reference to a project and not to a specific number of hours I thought that I was offered a project

Contracts are interpreted according to what a reasonable observer would have understood. It is perfectly possible to have a legally binding agreement that is quite vague. The concept of engaging someone as a worker is well understood and doesn't need much additional explanation. Contract law doesn't impose additional requirements and terms into contracts, unless such additional terms were expressly agreed to by the parties or imposed by statute.

 

If the employer's requirement was simply for you to work on a specific project, I don't think that implies that the employer is required to keep you for the whole of that project or given a minimum number of hours, unless the employer had clearly and expressly agreed to do either of those things.

[resources]

1.

An employment contract can be terminated at will taking into account the statute about the two years service for dismissal and the one month rule about notice. However a service contract can be terminated only according to the terms of the contract so not at will.

 

2.

The fact that a contract could be what you call a bog standard service contract does not mean that it can be terminated by either party at any time. Like any other contract it can be terminated only according to the terms of the contract

 

3.

What a reasonable observer would have understood the parties have agreed will depend on the contents of the email exchanged between me and my employer

 

4.

Concerning the issue of the meaning of work or hours of work the exact, precise wording which appears in my contract is

 

“You and the Company each acknowledge and agree that the Company is under no obligation, at any time, to provide work or hours for work to you and you are under no obligation, at any time, to accept any work or hours of work from the Company”

 

The question remains why my employer makes a difference between ‘work and hours for work’. I have googled this expression and I found nothing. According to me ‘work’ mean a project and ‘hours for work’ means a limited number of hours. Therefore my employer could have offered me only one of the two and because his email does not make reference to a limited number of hours I suppose that he has offer me ‘work’ i.e. a project

 

5.

You say

 

“The concept of engaging someone as a worker is well understood and doesn't need much additional explanation”

 

The fact we are a worker does mean that we will be treated in a specific way only because we are a worker. I remind you that ‘zero-hours contract’ do not have a specific meaning in law because there is no statutory definition of them and all depends of the terms of our contract

 

6.

You say

 

“If the employer's requirement was simply for you to work on a specific project, I don't think that implies that the employer is required to keep you for the whole of that project or given a minimum number of hours, unless the employer had clearly and expressly agreed to do either of those things.”

 

So the question is why my employer makes reference in his email to the length of the project and why contrary to other contract he does include a clause given him the right to withdraw offer of work because by doing so he causes me to believe that I will work for him for the length of the project unless the project is terminated earlier or I do something wrong

[steampowered]

1.

An employment contract can be terminated at will taking into account the statute about the two years service for dismissal and the one month rule about notice. However a service contract can be terminated only according to the terms of the contract so not at will.

 

2.

The fact that a contract could be what you call a bog standard service contract does not mean that it can be terminated by either party at any time. Like any other contract it can be terminated only according to the terms of the contract

 

3.

What a reasonable observer would have understood the parties have agreed will depend on the contents of the email exchanged between me and my employer

I agree with all of the above. So, what were the termination arrangements set out in the contract? If there were none, I am struggling to see how anything other than the standard employment rules could apply.

 

4.

Concerning the issue of the meaning of work or hours of work the exact, precise wording which appears in my contract is

 

“You and the Company each acknowledge and agree that the Company is under no obligation, at any time, to provide work or hours for work to you and you are under no obligation, at any time, to accept any work or hours of work from the Company”

 

The question remains why my employer makes a difference between ‘work and hours for work’. I have googled this expression and I found nothing. According to me ‘work’ mean a project and ‘hours for work’ means a limited number of hours. Therefore my employer could have offered me only one of the two and because his email does not make reference to a limited number of hours I suppose that he has offer me ‘work’ i.e. a project

 

5.

You say

 

“The concept of engaging someone as a worker is well understood and doesn't need much additional explanation”

 

The fact we are a worker does mean that we will be treated in a specific way only because we are a worker. I remind you that ‘zero-hours contract’ do not have a specific meaning in law because there is no statutory definition of them and all depends of the terms of our contract

This is crystal clear to me. The employer can offer you work, or it can simply offer you no work. There is no legal definition to the terms "work" or "hours of work", they will be given the ordinary meaning which I think is pretty clear.

 

6.

You say

 

“If the employer's requirement was simply for you to work on a specific project, I don't think that implies that the employer is required to keep you for the whole of that project or given a minimum number of hours, unless the employer had clearly and expressly agreed to do either of those things.”

 

So the question is why my employer makes reference in his email to the length of the project and why contrary to other contract he does include a clause given him the right to withdraw offer of work because by doing so he causes me to believe that I will work for him for the length of the project unless the project is terminated earlier or I do something wrong

Telling you the length of the project is relevant information, but I do not think it implies a legally binding obligation to give you work hours for the entire project. That would contradict the clear terms of your written contract and, in a legal dispute as to what the terms of your contract are, you will find that the legal document (i.e. your contract) will trump unclear statements made in emails.

[resources]

1.

Even if my employer would have offered me one day work instead of a project he would not have been able to cancel it because there is not a clause in our contract giving him the right to withdraw offer of work. And it is why other zero hours contract have such a clause and it is why my contract is not a true zero hours contract.

The important point is that whatsoever what my employer has offered me and I have accepted either it is only one day work or a project he cannot withdraw it. Therefore my employer needs to amend his zero hours contract and add such a clause

 

2.

Some of you told me that my employer did not guarantee me that he will keep me during all the project. However the expectation of the parties could not have been either that I will work only one day on the project

 

3.

I could have replied to the email of my employer by telling him that I was able to work only one day in the project, In this condition I would have done to him what we called in contract law a ‘counter offer’. And the question is would have my employer accepted to take me in the project only for one day? It is very likely that he would not accepted to brief me into the project only for one day and would have preferred to take another casual worker who would have worked the entire project

 

4.

In my contract there are several clauses which explain what a casual worker has to do if he wants to cancel work that he has accepted. Therefore a casual worker can cancel work that he has accepted as long as he complied with these clauses. However strangely in my contract there is no clause giving to my employer the right to cancel work that has been offered and accepted by the casual worker. Therefore this clause is missing from my contract and I advise my employer to include it into his zero hours contract as soon as possible

[resources]

1.

You say

 

“Contracts are interpreted according to what a reasonable observer would have understood. It is perfectly possible to have a legally binding agreement that is quite vague”

 

However I have done searches and I have found out that an offer has three elements such as certainty of offer, invitation to treat and termination of offer. Therefore what is in offer and has been accepted by me should be certain and in my case it should be either a specific number of hours of work or a project

 

2.

You say that my employer did not promise that I will work for two weeks but the length of the project was not known because my employer says concerning the length of my project ‘around two weeks’. So instead of offering me two weeks work he offered me a project because the end date of the project was unknown

[resources]

1.

You say

 

“Contracts are interpreted according to what a reasonable observer would have understood. It is perfectly possible to have a legally binding agreement that is quite vague”

 

However I have done searches and I have found out that an offer has three elements such as certainty of offer, invitation to treat and termination of offer. Therefore what is in offer and has been accepted by me should be certain so in my case it should be either a specific number of hours of work or a project and in my case it could have been only a project which was offered to me because it was made reference in my employer’s email to a project but not to a specific number of hours of work

[steampowered]

The heart of the point you are making seems to be that, because the employer referred to a 2 week project in an email, they must have agreed to keep you for the entire project. I simply don't agree with that. The employer won't be seen to have agreed to keep you employed for the entire duration of the two week project unless it actually said that it agreed to you employed for the entire duration of the project.

 

Even if the employer had agreed to keep you employed for the 2 weeks, your damages for breach of contract would be zero, since the contract says the employer doesn't have you any hours.

 

You suggest that there are only two possibilities - you say that either (1) the employer offered employment for a 2 week project, or (2) it offered employment for a fixed number of hours. I don't think that is the case. The usual understanding of any employment contract (or service contract) is that you are employed indefinitely until such time as you retire, resign or you are sacked. That will be the case here unless you have a very clear express statement from the employer to the contrary.

[resources]

It is true that in my case what has been offered to me and accepted by me either one day work or a project is debatable. However if we imagine a situation where my employer would have offered me to come and to work one day or for example during only two hours. And my employer wanted to withdraw this offer of work like it happens very often in zero hours contracts. The question will be whether or not he has the right to withdraw this offer of work because according to basic contract law on offer and acceptance when he offered me these two hours work and I accepted them a legal relationship would have been created which could have been annulled only by a term in the contract? However in my zero hours contract contrary to other zero hours contract there is not any clause which says that the employer reserves the right to withdraw offers of work.

 

Therefore first conclusion is that as a matter of fact my contract was not a true zero hours contract for this reason. And if it was not a true zero hours contract in the case of the two hours work being offered was it a true zero hours contract in other situations for example when my employer proposed me to work on a project instead of doing a limited number of hours?

 

Furthermore a second conclusion is that if my employer want to have a true zero hours contract he needs to add a clause in it which says that he reserves the right to withdraw offer of works

[BazzaS]

It appears the question has become "things I can tell my previous employer(s) that they'll

a) ignore with regard to changing their contracts, whille

b) ensure they never employ me again, be that in a zero hours contract or not."

 

So, I guess it does still have a tenuous connection to "zero hours contracts in the real world"!

 

 

If you "win" (what do you think you'll 'win'?), does it come with a "King Pyrrhus" name badge?

[becky2585]

They offered you a zero hours contract (ie a contract with no obligation for either party to subsequently provide or accept work). You accepted that offer.

 

Zero hours contracts don't contain notice periods and the statutory notice to terminate is zero notice.

 

So you're onto a complete loser here, as you've been told numerous times.

 

You're entitled to no notice and no work - what makes you think you have a case? They could have kept you on but provided no work for the two week period! In the absence of any legal certainty you have no rights at all here.

[resources]

1.

You say

“You're entitled to no notice and no work - what makes you think you have a case? “

 

The relevant point here is whether you agree with me that a so-called ‘zero hour contract’ could not a true zero hours contract if it does not contain a clause which says that the employer reserve the right withdraw offer of work for the reasons explained in my last post?

 

2.

You say

“They could have kept you on but provided no work for the two week period! In the absence of any legal certainty you have no rights at all here”

 

There is no statutory definition of a zero hours contract so all depends on the terms agreed by the parties. Therefore what matters is the intention of the parties. Do you think that the intention of the parties was that I remain all the day doing nothing during the project even though the other casual workers were working on the project until it was completed?

[becky2585]

Regarding 1 - there's no obligation on an employer, statutory or otherwise, to include such a clause. Therefore, reasonable notice will be implied - which, if using the statute, is zero.

 

Regarding 2 - the intention of the parties was for you to work under a zero hours contract with no obligation for work to be provided. That's the very nature of a zero hours contract. Even assuming you were contracted to work full time with an absolute guarantee of a set number of hours per week, they're still legally entitled to terminate the contract without notice!

[resources]

1.

There are obviously no law which forced a party to include such a clause but in this case according contract law on ‘offer and acceptance’ work which has been offered and accepted could not be withdrawn

 

2.

You say that the intention of the parties was that I work under a zero hours contract but there is no statutory definition of a zero hours contract all depends on the clause of contract concerning the offering of work but also the withdrawal of offer of work in taking into account contract law on ‘offer and acceptance’

[BazzaS]

Resources: you are correct.

Where are you correct? For everything you have ever posted.

Why are you correct? Because it is you & you couldn't possibly be wrong.

 

Failing that comment working to stop more contradiction (it isn't even 'argument', just contradiction) ; is there a way I can un-sub from this thread & stop getting email notifications? (I'm accessing the mobile optimised version from an iPhone, so I don't get the full range of options I get from a desktop .....)

(If it can't be done from the mobile site, can someone give me a step-but-step for the desktop site, please)

[honeybee13]

Bazza, can you see your user CP from your phone? You have Settings in there.

 

HB

[BazzaS]

I get to see which threads I'm subscribed to by doing that, HB, but not a setting to unsubscribe (on the mobile)

 

I'll try from my desktop tonight. Thanks, HB.

[becky2585]

Okay, I'm out.

 

Go and speak to another lawyer if you don't believe everything you're being told here!

[honeybee13]

Let me know by PM or tell the team if you have problems, Bazza.

 

HB

[resources]

I could be incorrect in this case I would like you explain me why? For example you can explain me why my interpretation of the principle of ‘offer and acceptance’ of contract law could be wrong. It is what we call a discussion.

[Sidewinder]

There is no statutory definition of a zero hours contract so all depends on the terms agreed by the parties. Therefore what matters is the intention of the parties

[/Quote]

 

So issue a claim via MCOL and put it to the test as a breach of contract?

[resources]

1.

Concerning the principle of ‘offer and acceptance’ of contract

 

 

there is a difference between offering something and withdrawing something that we have already offered and has been accepted.

 

 

It is like in the day to day life you are not forced to offer a gift to anyone and anyone is forced to accept it

 

 

but if you offer it to someone and he accepts it and you change your mind and want it back he can refuse to give it back to you

 

2.

Another point is that the casual workers were asked at the beginning of the project if they accept to do the project

 

 

but they were not at the end of every day work asked if they accepted to come the day after to carry on working on the project

 

Concerning point 2

what I want to say is that the important point is that the casual workers were sent an email at the beginning of the project asking them if they accept to do the project

 

 

but they were not sent an email at the end of every day of work asking them if they accepted to come the day after to carry on working on the project.

 

 

Therefore we cannot say that every day of work was a separate offer of work so what was offered to me and accepted by me was a project