Dismissed after 28 week sick pay period, not warning from employer

Soubrette

IR35 was brought in to lift the veil of corporation when a ltd company was supplying services when in reality (according to HMRC)it was an employee/employer relationship.

Under IR35 the ltd company was liable for all national insurance payments as the contractor will be an employee of that company.

The company receiving the services would not be liable.

Sou

SarEl

dori2o wrote: »

I actually asked ACAS about this (claiming that the dismissal was a mistake) and they said that based on what had been sent by the employer and the wording of the letter then there is no doubt that the employer has dismissed him. Failure to pay the monies due will simply result in us starting an employment tribunal claim anyway. My Dad does not want his job back he just wants the money due to him.

According to ACAS you cannot simply start a claim,you must try and resolve the matter first with the employer and give them at least 28 days to resolve the issue.

ACAS are, as they often are (the other reason why I do not recommend them - they often misinterpret the law) wrong. The employer can, and probably will if they think you have sought legal advice, take back the dismissal and claim it was a misunderstanding. Joe Blooggs in HR miunderstood what Susie Smith the manager said, and accidentally thought he'd resigned. Or something. Not their fault (the employers) - just a mistake.

I understand your dad does not want his job back. Not surprising really. But I think we have a different interpretation as to what "the monies due him" are. He thinks it's the money owed. I think it's the money owed and compensation for his employer breaking the law and throwing him on the scrap heap without even a nod at obeying the law.

The law does not say you have to try to resolve things. The law says that if you are unfairly dismissed (which I would bet the family jewels on that he has been), you should normally appeal the dismissal, or any subsequent award may be reduced to take account of the fact that you didn't. However, the law also recognises that there are circumstances where this is not possible because the actions of the employer were so bad that you do not want your job back at all, and in those cases there isn't even a reduction in award made - this is the trust and confidence thing that I mentioned earlier. Now lets see - they sacked him without going through the correct processes set down by law and statutory guidance, without even telling him they were doing it, without any independant or OH medical involvement, by letter, and without informing him that in law he had a right to appeal the dismissal. Do you think anyone would trust an employer after all that? The only thing you could trust them to do is to sack him again but do it right the next time (because there is a right way of doing it - but it takes time).

Please do think about this. Your dad is not going to find it easy to get back to work, if he can do so at all. £3k isn't going to last very long, or go very far. Making a claim is his legal right. I really, really do think that you should get legal advice from an employment law specialist before you alert the employer to the fact that you know they have broken the law. Honestly, take it from me - if a solicitor referred this case to me I would, based on everything you have said being evidenced, absolutely definitely take the case, and be confident of winning. There are cases where one can be relatively confident. But based on what you have said they have dismissed him without notifying him that they were going to do so, and without giving him a right to attend a capability / disciplinary hearing. In law that is automatically an unfair dismissal.

dori2o

I appreciate what you are saying, and believe me, my mum and I wouldlove to see my dad go for everything, but unfortunately he is not a fighter and with my mum being disabled and me having my own family and problems we don't have the time to takle on a big case, even with a solicitor handeling things for us.

If it was me i'd go for everything, but my Dad just wants the 6 weeks pay and holiday entitlement. He's not bothering to fight for the other 4 years he could possibly get following the HMRC ruling and unfortunately there is no chance of changing his mind.

As for the fact 3k isn't going to last long, they've paid of the mortgage and live a comfortable life, they are getting the benefits they are entitled to and even though my Dad has only been getting £70 p/w ssp, that is still enough for them to live comfortably. The house is in excellent condition, and in all honesty is too big for them so they could downsize if they wished. Car is not a problem as my mum gets motability, my dad gets carers, andd mum Higher care component DLA, polus my dad is aslo applying for DLA so if he gets that they're even better off.

As I say, you can't make somebody fight for something they don't want to fight for.

Zazen999

Dori - have you told him what SarEl is saying?

The employer will be laughing their way to the bank on this one....

joanne_d_3

Hi all.

Sorry , Dori20 im not intending to hijack your thread whilst your asking for help for your dad, just wanted to ask SarEL a quick question whilst i see him/her helping you out.

SeaEL - you made a statement earlier on in this thread saying that if a solicitor referred this case (Dorio's) to you , then you would jump at the chance to take it on AND you would be confident of winning....

Just got me thinking...im imagining that you are pretty good at determining at an early stage which cases have potential and which ones are hopeless .

Dont suppose you would be willing to have a quick read over JUST ONE pm if i sent it to you , just outlining the main circumstances of my husbands case ?

You dont even have to go into a huge amount of detail in your response ( lol your busy im sure) , just a simple "go for it" or "give it up" would do ?

Please ??? lol:rotfl:

SarEl

joanne_d wrote: »

Hi all.

Sorry , Dori20 im not intending to hijack your thread whilst your asking for help for your dad, just wanted to ask SarEL a quick question whilst i see him/her helping you out.

SeaEL - you made a statement earlier on in this thread saying that if a solicitor referred this case (Dorio's) to you , then you would jump at the chance to take it on AND you would be confident of winning....

Just got me thinking...im imagining that you are pretty good at determining at an early stage which cases have potential and which ones are hopeless .

Dont suppose you would be willing to have a quick read over JUST ONE pm if i sent it to you , just outlining the main circumstances of my husbands case ?

You dont even have to go into a huge amount of detail in your response ( lol your busy im sure) , just a simple "go for it" or "give it up" would do ?

Please ??? lol:rotfl:

Just once, and I will give it a go. But this carries a health warning - it is very hard to make a determination based on what people tell you. The case in this thread (assuming the information is correct) is relatively easy because it's open and shut on at least two main grounds. Employers are rarely that stupid and circumstances are rarely that clear cut. If you have taken legal opinion, tell me what they said too. But bear in mind I may not be able to help at all - what you are asking isn't easy.

dori2o

Zazen999 wrote: »

Dori - have you told him what SarEl is saying?

The employer will be laughing their way to the bank on this one....

Yep I've told him, but you can't teach an old dog new tricks

SarEl

dori2o wrote: »

Yep I've told him, but you can't teach an old dog new tricks

As a lifelong dog owner, I would like to point out that this is not true. Old dogs can learn new tricks quite easily. They just need a bit more training and more incentive

joanne_d_3

Just sent the pm SarEL . Thanks for your help , its really appreciated .

Wont pm you any more though :rotfl: