Long term casual worker and sending of P45

[resources]

I think that my contact is a fixed term contract and not a zero hours contracts but I am not entirely sure. I think that it is a fixed term contract because it is stated in the rules that in case of underperformance we have to go through the disciplinary procedure and be warned to be removed from a project. However if it was a zero hours contract my employer will simply reduce to zero the number of hours that he offer someone who underperform. Moreover if it was a zero hours contract there will be no need for a probationary period

 

In reality I do not know exactly what is the difference between these two kinds of contracts and nothing it is stated in the rules about moving from the probation period. However I am wondering if it matters which type of contract it is because if in the rules it is stated that we have to go through the complaint procedure to be removed from a project if this has not happened irrespectively of whether it is a fixed term contract or a zero hours contract it is breach of contract.

 

I accepted to work for my employer for this project (and I have refused to work for another employer) only because it is stated in the rules that I could be removed from the project only under certain conditions which are that I have to go the complaint procedure in case of underperformance and I should be given a chance to improve

 

I have read again the rules and it is stated at the beginning of them that there is no obligation for my employer to offer work and for the worker to accept it. However I think that once a project has been offered to a worker to do he can be removed only according to the disciplinary procedure otherwise what point there would be in having stated in the disciplinary procedure that workers will be removed from the project if they underperform. Hence I think that maybe my contract is a fixed term contract within zero hours contract.

 

Therefore according to me the fact that I was removed from the project without having been through the complaint procedure gives me the right to claim for breach of contract for the remaining six weeks of the project that I have not been paid because I was removed from the project.

 

Maybe we have to consider that the giving of hours of work is a different matter to the removal from the project. Therefore in my case the issue will be not whether or not my employer refuses to give more hours of work but that he removed me from the project without complying with his own rules

 

I would like to claim for breach of contract not for unfair dismissal so there is no need to have two years continuity of service

[becky2585]

You can't claim for breach of contract. You could only do so if you a) had a minimum set number of hours written into the contract and b) had a notice period that wasn't complied with or a procedure that should be followed (contractually) for employees with fixed hours.

 

The court will look at what would have happened had the contract been properly executed. As it was zero hours with no obligation to provide work, they could simply have failed to provide you with any work at all until the contract would ordinarily have expired.

 

It's a pain and morally wrong, but not legally actionable.

[resources]

So the question is what happened if my employer does not follow the complaint procedure which says that in case of underperformance a worker will be removed from a project after being through the complaint procedure and being warned?

[Emmzzi]

So the question is what happened if my employer does not follow the complaint procedure which says that in case of underperformance a worker will be removed from a project after being through the complaint procedure and being warned?

 

not legally enforceable, sorry

[resources]

1.

It is possible that the disciplinary procedure has nothing to do with my case because I think that I have been removed from a project but not removed from the panel of casual workers of my employer.

 

2.

However I can nevertheless maybe have a case for breach of contract for two reasons:

Firstly because the rules of my employer says

 

“You will be monitored to help you achieve your best productivity but we reserve the right to remove you from a project if you are underperforming in comparison to the other casual worker

If your output is constantly lower than average we will not offer you further work”

 

However my employer has not put forward any evidence that I underperformed constantly in comparison to the other casual workers in particular he does not make any reference to the productivity of the other workers in the reasons he gave me to remove me from the project.

 

Secondly in the rules of my employer there is a special process to monitor the productivity of the casual workers which has not been used about me.

 

3.

The problem is that my employer can consider that I failed my probation period and that for this reason these two reasons are invalid even if I was removed from the project after the end of my probation period but it is likely that my employer has not paid any attention to this detail. Moreover I have heard that according to the law a probation period has no meaning and the contractual obligations of the parties apply even during the probation period.

 

4.

We can say that my employer can offer work if he wishes but the question is whether or not to offer work to a casual worker is according to contract law a different matter that to remove a casual work from a project?

 

5.

The damage that I have sustained is that I have not been paid for the six remaining weeks of the project even though I refused work from another company on the basis of the terms & and conditions that I describe above to work for this company and at the end I had no work at all for six weeks

[ericsbrother]

you are a casual worker according to them so is this the case? Do you have a zero hours contract?

Losing other possible work is not a consequentail loss because you could always have just walked away from this one. Everything else is immaterial as far as suing fro brach of contract goes, it all depends no whether you were emplyed to do x hours of work on this contract with a defined finsh time/objective. If you are employed on an hourly rate then tough.

[steampowered]

It is possible that the disciplinary procedure has nothing to do with my case because I think that I have been removed from a project but not removed from the panel of casual workers of my employer.

Disciplinary procedures are not typically part of your contract. You are not generally able to sue an employer simply because they have failed to follow their disciplinary procedure.

 

However I can nevertheless maybe have a case for breach of contract for two reasons:

Firstly because the rules of my employer says

 

“You will be monitored to help you achieve your best productivity but we reserve the right to remove you from a project if you are underperforming in comparison to the other casual worker

If your output is constantly lower than average we will not offer you further work”

 

However my employer has not put forward any evidence that I underperformed constantly in comparison to the other casual workers in particular he does not make any reference to the productivity of the other workers in the reasons he gave me to remove me from the project.

 

Secondly in the rules of my employer there is a special process to monitor the productivity of the casual workers which has not been used about me.

I do not think that any of this would be part of your contract.

 

Also, there is nothing in there which actually says the employer must keep employing you if you perform well. It may be completely true that the employer may you remove from a project or refuse further work if you are underperforming, but that doesn't say they can't remove you from a project for other reasons. The general legal position is that an employer may dismiss an employee for any reason whatsoever within the first 2 years of employment, subject to specific statutory exceptions such as unlawful race discrimination or claiming the minimum wage.

 

The problem is that my employer can consider that I failed my probation period and that for this reason these two reasons are invalid even if I was removed from the project after the end of my probation period but it is likely that my employer has not paid any attention to this detail. Moreover I have heard that according to the law a probation period has no meaning and the contractual obligations of the parties apply even during the probation period.

If you are employed as an employee for more than 1 month, you have the right to receive one week's notice of dismissal (unless you were dismissed for gross misconduct) or any longer notice period stated in your employment contract. This requirement applies regardless of whether you are in probation or not. So if you were an employee and you had more than 1 month's continuous service, and you weren't given 1 week's notice of your dismissal, ask for 1 week's notice pay.

 

4. We can say that my employer can offer work if he wishes but the question is whether or not to offer work to a casual worker is according to contract law a different matter that to remove a casual work from a project?

Was there a specific statement in your employment contract stating that you must not be removed from the project you are working on if you are performing well? If not, unfortunately I think that a breach of contract claim would be pretty hopeless.

 

Any breach of contract claim would need to be based on a specific statement set out in your employment contract which has been breached. You can't start bringing in statements from non-contractual documents and you can't start implying miscellaneous things.

 

5. The damage that I have sustained is that I have not been paid for the six remaining weeks of the project even though I refused work from another company on the basis of the terms & and conditions that I describe above to work for this company and at the end I had no work at all for six weeks

Again, you would only be able to bring a breach of contract claim if your contract specifically states or it was otherwise agreed in writing that you would be employed for the remaining six weeks.

[resources]

I want to reply to ‘ericsbrother’

 

Any employee can leave his job at any time but an employer can nevertheless be ordered to pay him damages if he unfairly dismissed him. The amount of damage corresponds to the period of time this employee will need to find another job.

 

I do not want to claim for breach of contract because my employer has not given me a certain number of hours of work but because he has removed me from the project without following his own rules on the removal of workers from a project and without following his own rules on the monitoring of the performance of the workers

 

I want to reply to ‘steampowered’

 

You say

 

“Disciplinary procedures are not typically part of your contract. You are not generally able to sue an employer simply because they have failed to follow their disciplinary procedure”

 

So the question is why my employer has made me sign the disciplinary procedure?

 

You say

 

“However I can nevertheless maybe have a case for breach of contract for two reasons:

Firstly because the rules of my employer says

 

You will be monitored to help you achieve your best productivity but we reserve the right to remove you from a project if you are underperforming in comparison to the other casual worker

If your output is constantly lower than average we will not offer you further work”

 

However my employer has not put forward any evidence that I underperformed constantly in comparison to the other casual workers in particular he does not make any reference to the productivity of the other workers in the reasons he gave me to remove me from the project.

 

Secondly in the rules of my employer there is a special process to monitor the productivity of the casual workers which has not been used about me.

I do not think that any of this would be part of your contract”

 

You do not explain why but it seems to me that any terms and condition form part of the contract. Why to make exception concerning some terms and conditions?

 

You say

 

“Was there a specific statement in your employment contract stating that you must not be removed from the project you are working on if you are performing well?”

 

In a contract there are also the implied terms. It is not an implied terms that if we are removed from a project if we underperform or misconduct in any way this means that we are not removed from the project if we do not underperform or misconduct in any way? It seems to me that common sense matters a lot in contract law. If you were rights the terms and conditions will simply say

 

“We reserve the right to remove a worker from a project for any reasons”

 

You have to take into account also the there is a law about the unfair terms of a contract. Do you image a clause in a contract which says

 

“You will be removed from the project if you underperform or misconduct in any way or for any other reasons”

 

The implied terms mean also that the fact that I will not be removed from the project if I have done nothing wrong applies only if he project still exist what covers my employer if he need to remove me from a project if this project is stopped.

 

You say

 

“Again, you would only be able to bring a breach of contract claim if your contract specifically states or it was otherwise agreed in writing that you would be employed for the remaining six weeks”

 

I do not want to claim because I have not been employed for the remaining six weeks but because I was removed from the project in contravention with the terms & conditions. The question is what would have happened if I would not have removed from the project? We do not have to mix up the breach of contract and damages due to this breach. I intend even to claim for more than the six remaining weeks because the fact that I was removed from this project in breach of contract means that it is likely that my employer would not give me any work ever. Hence the damages that I have sustained could be assessed as being more than the six remaining weeks.

 

You say

 

“The general legal position is that an employer may dismiss an employee for any reason whatsoever within the first 2 years of employment, subject to specific statutory exceptions such as unlawful race discrimination or claiming the minimum wage”

 

Here you mix up statute and contract law the fact that an employer does not have to pay any damages for unfair dismissal for the first two years does not mean that he would not have to pay any damages for breach of contract

 

You say

 

“Any breach of contract claim would need to be based on a specific statement set out in your employment contract which has been breached. You can't start bringing in statements from non-contractual documents and you can't start implying miscellaneous things.”

 

It is not the Terms & Conditions a contractual document and all its clauses even those on the removal of workers from projects and monitoring of the performance of the worker valid contractual clauses?

 

According to contract law what matters is the expectation of the parties when entering into a contract. And my expectation was that if I accept to work for this employer I will not be removed from the project if I perform well and I conduct well.

 

You say

 

“Again, you would only be able to bring a breach of contract claim if your contract specifically states or it was otherwise agreed in writing that you would be employed for the remaining six weeks.”

 

I was given a document about the project with the dates of the project stated in it which caused me to believe that this project will last for this period obviously except if it is stopped for any reasons (implied terms) but in my case this has not happened

 

I think that the moral of this story is that even if casual worker have less rights than permanent workers this does not means that employers can do with them what they want.

[Emmzzi]

That's not how morals work. You'd need to have gotten an actual outcome, not just your own, lone opinion.

 

By all means visit a lawyer and see if they think you have a case worth pursuing. Or slap in a letter before action and see if they will pay up just to make you go away.

[resources]

When I say

 

"I think that the moral of this story is that even if casual worker have less rights than permanent workers this does not means that employers can do with them what they want"

 

This was only a detail and not the main issue.

 

And concerning a letter before action it is too late because the three months deadliine

[ericsbrother]

put simply, you will not win a claim, expecially of you try it on with this load of confused waffle. It appears as though your contract was a standard employment contract and not one where you would be considered self-employed providing a service to the company. If you got the correct pay for the hours worked and the tiny bit of holiday pay due then you will get nothing else as there is nothing else to claim.

You can start a civil claim any time within 6 years iof the date of the event that lead to the tort, the time limit you mention is for Employment Tribunal claims.

 

Should you decide to start an action you may well regret it as it is doomed to fail and you may well be forced to pay the full costs of defending the claim, which can be up to £20,000.

 

Get on with your life and forget all about this. It will be of no consolation but employment law trumps normal civil law regarding contracts. That advantages the bad employer and is why those being paid millions a year as CEO's have different contractual conditions than the ret of the world. Law is ultimately about money as it is the only way of quantifying things and punishing entities rather than individuals.

 

You havent lost any so you wont get any from a court

Edited September 16, 2016 by honeybee13
Paras.

[resources]

I do not intend to issue a claim to the County Court for breach of contract because I would like to issue a claim for breach of contract to the Employment Tribunal.

 

Another reason why I would like to issue a claim is because I would like to know the real reason why I was removed from the project.

[honeybee13]

Hello there.

 

I'm not a legal person, but have you checked out the cost of lodging an ET claim as opposed to a county court one? You may find that the ET is a lot more expensive. From the CAB:-

 

https://www.citizensadvice.org.uk/work/problems-at-work/employment-tribunals-from-29-july-2013/what-will-it-cost-to-make-a-claim-to-an-employment-tribunal/employment-tribunals-how-much-will-it-cost-to-make-a-claim/

 

HB

[resources]

To issue a claim in the ET costs £390 and in the county court if I claim for six weeks work it will cost me about £105 plus an allocation questionnaire fee of £40. However claims in the county court are treacherous because even if we issue a small claim i.e. for less than £10000 which is intended for the small track for which there is no costs in case this claim is struck out before it is allocated to a track I can be ordered to pay the legal cost of my employer which could be substantial if he hires a lawyer.

 

Moreover there is another risk which is that the judge in the county court can decide that this is employment law matters and that a ET judge will be more qualified than him and consider that this claim should have been issued in the Employment Tribunal and strike it out for this reason.

[steampowered]

There are really two fundamental hurdles which you need to cross to have a successful breach of contract claim.

 

The first hurdle is demonstrating that the disciplinary procedure you have been provided with is contractual. As I mentioned, disciplinary procedures do not normally form part of your employment contract and cannot be sued on. It is interesting and a bit unusual that you were actually asked to sign the procedure, but I'm not sure this would be enough to make it form part of your employment contract.

 

The second hurdle is proving that the procedure you are referring to has actually been breached. As I mentioned, you haven't posted any extract from the policy which says that the employer must keep you for the entire duration of a project. It is possible for an employer to say it will remove you from a project if you perform badly, without that meaning it loses the right to dismiss in the middle of a project in accordance with the provisions of your employment contract.

 

Your employment contract should state what notice period the employer needs to give if it wants to dismiss you. This will probably be one week. That will be the relevant notice period.

 

I am sorry and I see where you are coming from, but I do think that issuing a breach of contract claim in these circumstances, except for perhaps a claim for one week's notice pay, doesn't sound to me like it has a good chance of success.

 

To issue a claim in the ET costs £390 and in the county court if I claim for six weeks work it will cost me about £105 plus an allocation questionnaire fee of £40. However claims in the county court are treacherous because even if we issue a small claim i.e. for less than £10000 which is intended for the small track for which there is no costs in case this claim is struck out before it is allocated to a track I can be ordered to pay the legal cost of my employer which could be substantial if he hires a lawyer.

You should be aware that there is still a costs risk in the ET. The basic position in the ET is that costs are not usually awarded but they can be against a party who behave unreasonably or brings a claim with no reasonable prospect of success. Costs are only awarded in a very small number of cases, but I do think there is a risk that your case might be seen to fit in the 'no reasonable prospect of success' bracket.

[Good Sister]

I do not intend to issue a claim to the County Court for breach of contract because I would like to issue a claim for breach of contract to the Employment Tribunal.

 

Another reason why I would like to issue a claim is because I would like to know the real reason why I was removed from the project.

 

If finding out why you were removed from the project is one of the reasons for issuing a claim, I think you are going to be very disappointed with the outcome - with under two years service, they can get rid of you for near enough anything and the excuse could still be bogus.

 

If this means so much to you, have you considered sending your former employer a subject access request? It will cost you £10, but they are supposed to supply all the information they have on you. This might reveal information such as why you were let go and performance reviews, although this will depend whether they had that information in writing or by recorded conversations.

 

This might set your mind at rest without the need to go through a stressful claim process that has next to no chance of success.

[resources]

1.

I think that the disciplinary procedure has nothing to do with my case because I have not been through it because I have been removed from a project for which it is not necessary to go through the disciplinary procedure. Unless I am mistaken it is necessary to go through the disciplinary procedure to be removed from the panel of casual workers of my employer but not from a project.

The clauses that I considered have been broken are this on the removal of the casual worker from a project which say that he should have underperformed consistenly and this about the monitoring of the performance of the workers

 

2.

Concerning the issue of whether my contract is a zero hours contract or a fixed term contract I have found the following in the Internet

 

“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.”

 

This means that we can have a fixed term contract if we have simply a relationship with an employer and not necessary a written contract. I heard that a contract could be entered into by conduct.

 

This EU Directive means also that there could a fixed term contract if the end of this relationship is determined by the completion of a specific task for example a project. Hence I would like to know if this means that I could have a fixed term contract without any contract where it is stated that I have to work a specific number of hours or a specific number of days for example like in my case where I work for a project. I think that it is difficult to imagine a contract where it is stated that we will work for an employer for only a specific project which end date is not know in advance because a project could last less or more time

 

3.

I heard also that zero hours contract are concerned when there are fluctuations of work and I would like to know if this applies when there are several different projects which are completed. It is this considered as fluctuation of work?

 

4.

One advantage of issuing a claim in the ET and not in the county court is that in the ET there is a preliminary ACAS conciliation before we issue the claim i.e. we have to pay any court fee

[steampowered]

Yes, a contract can be entered into by conduct if there is nothing in writing dealing with the issue. Do you not have a written contract? Or any written statement of terms and conditions setting out information such as period of employment, pay, notice periods and so on?

[resources]

I do not have any written contract or any written document called ‘written statement of terms and conditions’. What I have is a document called ‘Casual worker Terms & Conditions And Handbook’ where there are the condition of removal of a worker from a project and the monitoring of the performance. I have also a separate document that I have signed which is called disciplinary procedure which concerns the condition in which we can be dismissed i.e. removed from the panel of casual workers.

Moreover I am not sure that I am entitled to one week notice because I have worked less than one month for my employer if we not taken into account that maybe I am still working for my employer because I am still in his panel of casual workers. I have sent him an email asking him if I am still in the panel of casual workers but he has not replied to me

 

The reason why I cannot have a written contract with a specific number of days is because we do not know when the project will finish exactly.

 

Moreover I am wondering if the disciplinary procedure should have applied to me because it is likely that my employer will not give me anymore work because it is unlikely that he will give work again to someone who has already been removed once from a project. He has not given me any work since he removed me from the project more three months ago

[steampowered]

If you have worked for less than one month, the basic legal position is that employment contracts are 'termination at will' meaning that no notice is required to dismiss you.

 

Unless there is something specific in the documents you signed which actually says the employer is not allowed to dismiss you unless it gives notice, I am struggling to see a valid claim.

[resources]

One of the issues raised in my case is that I do not know until which date I have worked for this employer. I do not know if my employment finished when I was removed from this project or when I was removed from the panel of casual workers because in the disciplinary procedure it is stated that the last step of this procedure is that we will be dismissed by being removed from the panel of casual workers. However I have never been through the disciplinary procedure and I have never been told by my employer that I was removed from the panel of casual workers. Therefore I do not know if I am still employed by my employer or if I have been dismissed if this has happenned after I work for my employer less or more than 1 month

[ericsbrother]

you worked for 43 hours, one presumes as this being full time so when you were told that you were being removed from the job that is fairly clear that your employment was terminated. The explanation you got may be a bit vague but ultimately within the law.

You have received advice as that is what we give, sympathy for your situation is also offered but we cant sit here and tell you that you are right when you arent. You have been warned about the consequesnces of trying to take this further so I urge you to just stop trying to make something out of that that you cannot. Treat it as a bad dream and move on, you have nothing to take to an ET and havent shown enough to put in front of a judge for success at a small claims procedure hearing as you havent quantified a loss due to any breach of contract. You cant claim for 6 weeks work because you didnt do it. Being available isnt enough, esp with a zero hours contract that is not based on what is effectively piecework.

[resources]

My reasoning is the following:

 

Yes, my employer could have removed me from the project even if I performed well or for any other reasons but if he removes me from the project because I underperform he has to follow his own rules on underperformance. Otherwise what are these rules for?

[Emmzzi]

## "let it go, let it go..." ##

 

 

If you put as much effort into work or job hunting as you were doing into arguing the toss here... well, it still wouldn't help, because you are showing you cannot listen to any opinions other than your own, or make a reasoned decision.

 

Which also means you'd be difficult to work with on a project, because the manager needs you to do what he needs done, not what you think is right. Raising ideas is fine; sticking to them in the face of universal disagreement is ok if you're doing it on your own money, but he who pays the piper calls the tune.

 

I have no idea why you persist in trying to get board members to tell you that you are right and have a case. Please, please go and take paid advice from a lawyer if you do not trust the voices on here.

[ericsbrother]

you answered you own question, you can be removed for any reason. That can include underperformance, even though there are specifics on this that. As you have been there less than the qualifying period these dont apply to you. Try working in the bar trade and arguing your points when you have been let go after a trial shift. Most people removed thus are lucky to get paid at all so the manager of the establishment gets free labour.

If you continue this via an ET or court it will ultimately be very costly to you becasue if you lose you make yourself virtually unemployable.

I was once a witness in a race discrimination case at an ET, the employer was awarded £120000 costs against the plaintiff and his representative because of the tribunal decided that the claim was doomed, had warned the plaintiff and his rep but they persisted and so got clobbered with a full costs order.

My reasoning is the following:

 

Yes, my employer could have removed me from the project even if I performed well or for any other reasons but if he removes me from the project because I underperform he has to follow his own rules on underperformance. Otherwise what are these rules for?