Self-employed consultant claiming wrongful dismissal!

PHILANTHROPIST

ami66 wrote: »

Update in case it's helpful to anyone -

With regard to the unfair dismissal claim the judge threw out the case stating there was no case for my Employers to answer as she was clearly a subcontractor and therefore could not claim to have been unfairly dismissed.

Thought that would be the end of it but approx 4 month later she's back on the scene having lodged a new claim this time claiming discrimination due to her disability. Have no idea what disability as no one was aware she had a disability!

Employer due back at court in May for a new hearing.

I have encountered many similar cases re "employment status".

The facts and circumstances as described are somewhat unclear and cannot be determined fairly in an open , albeit largely anonymous, forum.

If the ex staff member's ET claim was as you allege struck out, the particulars must have been extremely poorly drafted. You may be being misled. ET cases are rarely struck out in the manner the OP describes. It is possible that the claimant's solicitor had no brain cells and may have pleaded wrong head(s) of claim, e.g pleaded employee status, but not the alternative of "worker", for which the burden of proof is far lower. I have heard of that scenario before. If that were the case the "claimant" may be able to sue their so called no win , no fee solicitor for professional negligence, and stop ,as you allege, pestering your employer.

The OP is concerned re having to work with the "claimant" again. As other members have said that appears to be highly unlikely.

The claimant has up to 6 years to bring a claim for wrongful dismissal as it is in effect a breach of contract claim. The "claimant" may well have employment status as a "worker" and again may well have up to 6 years in which to claim economic loss for inter alia unpaid holiday pay as per statutory rights under the Working Time Regulations. I dealt with a very similar case last year for a claimant in the county court and won. Judges increasingly find in favour of claimants re "worker" status. Employers are sometimes condemned for using self employed staff in order to avoid payment of employer's NI (can be up to > 13%) .

Employment status is ,however, a highly complex area of employment law and such cases are rarely clear cut.

Re discrimination. You have provided no details, but such cases rarely succeed. Seems like a try on.

Worry not. May be best to move on and get on with your job.

prowla

The government is playing games trying to prove that independent contractors are "disguised" employees, and the inevitable result of saying that is that the said "employees" should then have employment rights.

And one aspect by which the contractors prove that they are independent is by establishing no workers rights, no HR accountability, no notice/redundancy, and so-on.

Now, if the contractor wishes to "go nuclear" and establish that they are and employee, then that would mean that they had been an employee for the past (up to) 6 years, which would lead to a hefty retrospective tax bill.

On the flip side, as an independent contractor, the termination conditions should be laid out in the contract, so if it says immediate termination then so be it.

For sure, though, you can't pick and choose which you are...

PHILANTHROPIST

prowla wrote: »

The government is playing games trying to prove that independent contractors are "disguised" employees, and the inevitable result of saying that is that the said "employees" should then have employment rights.

Interesting point, but in reality the opposite appears to be true. Governments of whatever political persuasion have allowed, or in effect "turned a blind eye", to what is in some instances a scam by employers to avoid payment of employer's NI and worse still a means of denying "workers" their employment rights.

At the end of the day it is for judges to decide whether or not in reality a so called self employed "independent contractor" is in fact a worker or an employee. Based on my observations judges find in favour of such claimants in more than 50% of instances.

redux

ami66 wrote: »

It became quite clear that she was not really up to the standard of accounting knowledge required to work with the intricacies of the more complex accounts and intercompany transactions. She was also known for her bad temperament and frequently upset creditors and debtors. As a final straw to the company directors she started spreading rumours that the Group was insolvent and going bankrupt!

So one Friday she was told her services were no longer required and she should leave immediately.

Whatever the niceties of whether this should have been employment rather than a separate contractor - and it sounds more like the former if someone is regularly working in the same place all the time and nowhere else - it seems to me the comments about the company's financial status are at best prejudicial to a conducive working environment and at worst defamatory ( especially if leaked to outside companies), and either way valid grounds for termination of whatever kind of relationship.

PHILANTHROPIST

redux wrote: »

Whatever the niceties of whether this should have been employment rather than a separate contractor - and it sounds more like the former if someone is regularly working in the same place all the time and nowhere else - it seems to me the comments about the company's financial status are at best prejudicial to a conducive working environment and at worst defamatory ( especially if leaked to outside companies), and either way valid grounds for termination of whatever kind of relationship.

Good point Redux. If such a case were heard in an Employment Tribunal such contributory conduct, if proven, may result in claimant "winning", but being awarded a pittance (termed a "polkey" reduction). In a county court setting a similar ruling may apply.

Regardless, all this may be rather academic as the OP is not even a claimant !

ami66

PHILANTHROPIST wrote: »

I have encountered many similar cases re "employment status".

The facts and circumstances as described are somewhat unclear and cannot be determined fairly in an open , albeit largely anonymous, forum.

She personally was never contracted by my employers - her company provided the services and she worked as and when she wanted. She and her partners had clients other than my employers. At times one of the other partners attended and worked in her place ie maternity leave.

I still can't understand how she can be considered an employee of the company i work for under these circumstances as surely she was employed by the company that provided her services to us!

If the ex staff member's ET claim was as you allege struck out, the particulars must have been extremely poorly drafted. You may be being misled. ET cases are rarely struck out in the manner the OP describes. It is possible that the claimant's solicitor had no brain cells and may have pleaded wrong head(s) of claim, e.g pleaded employee status, but not the alternative of "worker", for which the burden of proof is far lower. I have heard of that scenario before. If that were the case the "claimant" may be able to sue their so called no win , no fee solicitor for professional negligence, and stop ,as you allege, pestering your employer.

She is not using a solicitor but acting on her own so no come back for her on the person who drafted her claim.

The OP is concerned re having to work with the "claimant" again. As other members have said that appears to be highly unlikely.

The claimant has up to 6 years to bring a claim for wrongful dismissal as it is in effect a breach of contract claim. The "claimant" may well have employment status as a "worker" and again may well have up to 6 years in which to claim economic loss for inter alia unpaid holiday pay as per statutory rights under the Working Time Regulations. I dealt with a very similar case last year for a claimant in the county court and won. Judges increasingly find in favour of claimants re "worker" status. Employers are sometimes condemned for using self employed staff in order to avoid payment of employer's NI (can be up to > 13%) .

Employment status is ,however, a highly complex area of employment law and such cases are rarely clear cut.

Re discrimination. You have provided no details, but such cases rarely succeed. Seems like a try on.

Have no details re her disability, all of us have been asked, and bear in mind some of the 10 employees worked the full 6 years her company was contracted to provide their services and none of us know anything about any disability.

If we didn't know how can there be any discrimination?!

Worry not. May be best to move on and get on with your job.

Oh I'm passed worrying about her coming back and just enjoying my job without her around. I've now worked there longer without her than I did with her. She's pretty much forgotten about except she keeps making this ridiculous claims :rotfl:

prowla

PHILANTHROPIST wrote: »

Interesting point, but in reality the opposite appears to be true. Governments of whatever political persuasion have allowed, or in effect "turned a blind eye", to what is in some instances a scam by employers to avoid payment of employer's NI and worse still a means of denying "workers" their employment rights.

At the end of the day it is for judges to decide whether or not in reality a so called self employed "independent contractor" is in fact a worker or an employee. Based on my observations judges find in favour of such claimants in more than 50% of instances.

You make a point there; I think that the employers scam generally relates to unskilled workers being taken on as easily disposable "self employed" workers and/or zero-hours contract workers.

However, the other end of the scale is more typically skilled workers who operate as contractors via a Limited company.

I think that the description in this case is of the latter.

prowla

redux wrote: »

Whatever the niceties of whether this should have been employment rather than a separate contractor - and it sounds more like the former if someone is regularly working in the same place all the time and nowhere else - it seems to me the comments about the company's financial status are at best prejudicial to a conducive working environment and at worst defamatory ( especially if leaked to outside companies), and either way valid grounds for termination of whatever kind of relationship.

It is perfectly feasible for an worker of one company to be placed at a client site for an extended period of time, but that would not make them an employee of the client.

ami66

somethingcorporate wrote: »

What a joker, she should find a less destructive hobby than clutching at straws.

Incredibly destructive

The CEO of the company has authorised an out of court settlement - as much as is needed to make the f$%!!^g cow go away as the director she was personally targeting has died very very suddenly as a very young age.

I hope she's got a guilty conscience for what she put the guy through and enjoy's her 'blood money' for there are two children growing up without a father now.

PHILANTHROPIST

ami66 wrote: »

Incredibly destructive

The CEO of the company has authorised an out of court settlement - as much as is needed to make the f$%!!^g cow go away as the director she was personally targeting has died very very suddenly as a very young age.

I hope she's got a guilty conscience for what she put the guy through and enjoy's her 'blood money' for there are two children growing up without a father now.

That is quite some allegation ami.

Do you, or the deceased's next of kin, have robust evidence to support such an allegation ? If so, best to inform the police rather than this forum.

We can only really comment on the employment law aspects of the claim. I guess your firm will have been advised that the claim made by the ex colleague had reasonable to good prospects of success. If it had low prospects then they may have preferred to seek to successfully defend the claim. Decision to settle may have been a mere commercial decision, but if what you allege were even partly true then, even if only on principle, a respondent would surely have sought to defend the claim and have it dismissed.