What can I claim for in a wronful dismissal claim.

zzzLazyDaisy

tigeress289 wrote: »

Thanks, That is just the point, I was paid nothing in lieu. The rides not over yet.

You certainly should have been given notice in accordance with your contract.

As for the rest - I agree, you seem to have been treated shabbily - and hopefully the head teacher was reprimanded by the board for failing to follow procedure. But from the standpoint of your claim, your only recourse would have been to appeal the decision to dismiss you to the board of governors, who have the power to retrospectively ratify the head teacher's decision and dismiss your appeal.

If it expressly stated in your contract of employment that any decision to dismiss would be taken by the Head in conjuction with the board of governors, then you *may* also have a claim for breach of contract for the wages you would have earned during the time it would have taken for the board to convene and make the decision in accordance with proper procedure. But the board of governors are members of the community who carry out these duties voluntarily - there is no way that their decision would have gone against the local authority's guidance. So on the balance of probabilities, you would have lost your job at that point anyway.

On the other hand - it would be more normal for the actual disciplinary and dismissal to be set out in Disciplinary Procedures, which would normally be a separate document from the contract. Disciplinary procedures are almost always stated to be 'non-contractual' for this very reason. I would expect a school to have properly drafted contracts and procedures, and to make the disciplinary and dismissal procedures clearly non contractual. However it is worth examining the paperwork for this point.

Hope this helps

Dx

System

tigeress289 wrote: »

What is the main point is that the authority HR in law had no power to dismiss me.

Correct

tigeress289 wrote: »

The decision was for the Head and Governing Board. The Board were not told and the Head went along with the HR, as he put it, for an easy life.

So, the Head sacked you and not the authority. The Head would then have reported to the Governors. As you have not been re-instated then they appear to have agreed with the decision that the Head took.

I see no problems there.

tigeress289

Thank you both, Again the Governors were for me and I would have been reinstated. The Head was given no choice. The HR informed the Head, I was self employed and could be sacked, thus not even being a breach of contract, which only applies if you are an employee. I met the triparte test and the HMRC status indicator test. This is still their stance up till now. I cannot believe an HR can get a status so wrong but will not admit it... Thus the need to go to court. I believe they do not care either way as its only public money in the first place. I have seen other staff members suffer breakdowns and treated with utter contempt by the Head and HR. One was told after 2 mis-carriages, that this cannot go on. Thankfully the head has gone and working on exposing those in the Authority who are trying very hard to cover it all up.

somethingcorporate

Whoa, so did you have an employment contract or were you contracting in as self-employed? Surely the Head would have known the difference.

Are you arguing that you were "officially" a self-employed contractor but are arguing you were actually an employee under the HMRC employment tests?

You do risk this turning into a personal vendetta. You've cost a lot of people their jobs when really it seems all your deserve is one weeks salary.

Really, should these people be losing their job for an ex-con who had a job for 5 months because they sacked you without payment of notice? I hope you are feeling proud of yourself.

Uncertain

somethingcorporate wrote: »

You do risk this turning into a personal vendetta. You've cost a lot of people their jobs when really it seems all your deserve is one weeks salary.

Really, should these people be losing their job for an ex-con who had a job for 5 months because they sacked you without payment of notice? I hope you are feeling proud of yourself.

Hang on a moment!

Providing the OP stays within the law they are entitled to pursue anything they may legally be owed. If they feel an employee of the school has behaved incorrectly they can make a complaint to the relevant authority. The consequences of that (if any) are not the OP's problem.

That said every post I read gets me more and more frustrated with the OP!

OP, along with several others you don't seem to have a clear understanding of the effect of the employed / self employed aspects of this case.

First of all, be clear on this point. It is perfectly possible for HMRC to take one view on this for tax purposes but for an employment tribunal to take the opposite view. Neither is binding on the other. This has happened many times.

If you were self employed then none of this can be dealt with by an employment tribunal. Breach of contract (if any) would have to be pursued through the county court. What you could claim (if anything) would depend on what you had agreed with the school. It is perfectly possible for a self employed contract (written or verbal) to require some notice to terminate so MAYBE you could claim this but that's about it!

If you could persuade an ET that you were in fact an employee for their purposes you could potentially claim unfair dismissal (but for the fact you were not employed long enough!) and wrongful dismissal (which is simply breach of contract). However, there is a strict time limit of three months in which to bring a claim so I imagine you are well out of time.

Beyond that the rest of this is, frankly, a load of hot air and you need to get a grip and move on.

You won't like it but that is the best advice you are going to get!

zzzLazyDaisy

I admire your generosity Uncertain

However, frankly, OP, I have come to the conclusion that you are deliberately obfuscating.....

It is clear that you are fully aware of the difference between employee and self-employed status from your reference to the case of Quashie v Stringfellows (which actually isn't the leading case on employee status, but does make clear that there is a difference, and one which you appeared to think was relevant to your circumstances).

Immediately after your post, in an attempt to clarify this point, I asked you to state whether you were...

1 Employed directly by the school
2 Employed by another company which provides services to the school
3 Self employed, and contracting to the school

You replied quite categorically that you were employed directly by the school. Having pursued that angle to the inevitable dead end, you now appear to be saying that you were engaged on a self employed basis after all, but wish to claim employee status, based on HMRC guidelines.

As Uncertain says, the two are not necessarily the same, and there have been many cases where a worker is deemed to be an employee under one test and not the other.

Of more importance, though, for you....

You have brought a claim for wrongful dismissal (breach of contract) in the county court. Presumably in the small claims court as any compensation that you might reasonably achieve will be less than £5000. The SCC will simply rule on the basis of the terms of the contract before it. Also, reference your earlier comment about wishing to set a legal precedent - the SCC cannot set precedents, only the higher courts (court of Appeal and House of Lords) can do that, so I hope you have deep pockets - that is IF you are granted leave to appeal, which is unlikely

You said yourself that you are out of time for making a claim to an employment tribunal, which is the proper avenue for complaints relating to employee status under employment legislation. Your alternative is to commence proceedings in the county court proper, with all the costs and expenses that entails - but even then I would expect the claim to be remitted to the SCC on application, given the small monetary value of the claim.

However, if you have the funds, time, and energy to pursue this claim through the legal channels, go ahead and good luck - but I suggest that you decide what your story is, and stick to it!

I'm out!

D

tigeress289

D and UNCERT have got it spot on. My original post elsewhere was about the staus to begin with.
After the initial interview, it was the business manager who suggested it was better for me to be self employed.
I did not have a problem to begin with but after a while a talk with a union rep opened my eyes to the employment status. They explained that anyone working in the school had a contract as I was not a contractor. I was paid an hourly rate, given a timesheet where I had to work fixed hours, on callout 24/7. Told what to do and where, did not have to supply materials, could not send in a substitute if ill or employ anyone to work with me.
I have no doubt whatsoever I will win the point.
I stated the Quashie as its the newest but the main precedent citied is Ready Mixed Concrete.
I want to do this myself and find out as much as I can in doing so. I do change the goalposts but its the same Goal, so I apologise for that but my intentions are genuine and I can clearly see that there are some super people on here. Again thank you