Agency - redundant? notice?

General_Grant

Through an agency I had worked for one client for a number of years. I have a contract of employment with the agency which has been in place for over two years. (At the start of the work for the client I was a temporary worker not an employee of the agency.)

My assignment came to an end in May because of restructuring. Last week I received a P45 (giving a termination date in mid-July). I would have been due two or more weeks' notice - though my contract says.

In early August they had sent a letter saying they hadn't heard from me since my last assignment and therefore would issue a P45 on 16 August. I received the letter on 14 August so told the agency they had not given proper notice. The only response I get when saying I haven't had proper notice is that "if you don't work for us for 8 weeks a P45 is issued automatically" and no acknowledgement that any notice is actually due.

The reason I haven't worked for them is that they have not offered any work. I had been in touch with them and was available. After I had received the P45 (so more than a month after termination) they asked if I would like to have my CV put forward for a job paying less than half of my previous rate. (As I am no longer their employee I have felt able to turn that down as not suitable.)

Is there any way of gaining redress for the lack of notice and for what looks like redundancy to me?

Takeaway_Addict

When exactly did you leave because you only have a finite time to lodge tribunals.

General_Grant

P45 says "leaving date" was 12 July.
P45 dated 21 August
P45 received 24 August (therefore the date I learned I had been dismissed 6 weeks earlier)

marybelle01

Agency employees aren't entitled to redundancy pay. And even if you got two weeks notice, if you weren't working then you wouldn't have any pay! And getting a P45 is not a dismissal anyway. An employer issues a P45 when you stop working for them (not the same thing as a dismissal) and you did stop working for them. A P45 is simply a statement of tax and earnings - if they obtained another assignment for you you would hand it back to them and they would adjust your tax accordingly taking account of the period you had no income.

General_Grant

marybelle01 wrote: »

Agency employees aren't entitled to redundancy pay. And even if you got two weeks notice, if you weren't working then you wouldn't have any pay! And getting a P45 is not a dismissal anyway. An employer issues a P45 when you stop working for them (not the same thing as a dismissal) and you did stop working for them. A P45 is simply a statement of tax and earnings - if they obtained another assignment for you you would hand it back to them and they would adjust your tax accordingly taking account of the period you had no income.

So when they told me that as an employee I would be eligible for redundancy pay, they lied? Why are temporary employees excluded from redundancy payments?

I would have liked the notice, as I was entitled to know what they were doing before the event. I wasn't looking for payment - though I was guaranteed annual hours.

A P45 says my employment was terminated. If it was terminated, was I not dismissed? I certainly didn't resign. (A P45 is a statement of "Details of employee leaving work" - a P60 is a statement of tax and earnings.) The P45 was not issued when I stopped working for them: it was issued 3 months after I stopped working for them because they had offered me no further work.

marybelle01

General_Grant wrote: »

So when they told me that as an employee I would be eligible for redundancy pay, they lied? It would appear so, yes. Agency workers assignments end when their clients say and they have no control over them, so the work ends for some other substantial reason - not redundancy. Why are temporary employees excluded from redundancy payments? They aren't - agency workers are.

I would have liked the notice, as I was entitled to know what they were doing before the event. I wasn't looking for payment - though I was guaranteed annual hours. If you aren't looking for payment, then what is the point? They told you that they had no work for you in early August and that if this situation continued they would send you your P45. So they told you what they were doing before the event.

A P45 says my employment was terminated. If it was terminated, was I not dismissed? I certainly didn't resign. (A P45 is a statement of "Details of employee leaving work" - a P60 is a statement of tax and earnings.) The P45 was not issued when I stopped working for them: it was issued 3 months after I stopped working for them because they had offered me no further work. No it doesn't. A letter saying that your employment is terminated says that your employment is terminated. A P45 is a tax document. It says that your work (assignment) is finished (hence "leaving work") and that you have stopped earning money (because there are no more assignments now). You can still be an agency worker and work for another agency, or claim benefits, and need the P45 to speed up the tax processes / prove income. I have done agency work in the past and between assignments if there was no work I got a P45 - which I handed back to the same agency when I was back on an assignment, but needed to claim JSA between assignments.

The agency guaranteed a certain number of hours each year, which presumably got used up this year on your assignment that finished. They guaranteed HOURS not PAY, and you turned down the next assignment they offered - they aren't required to find you a suitable alternative because that doesn't apply to agency workers. If you don't want to take an assignment then you don't have to, but you can't claim both that they aren't offering you work and turn down the work offered because it doesn't pay as much as a previous assignment. This is just life as an agency worker - you go with the work available, whatever it pays. And if you don't want to do that then you go to an agency paying more, or you find a permanent job that pays more.

General_Grant

I asked why temporary employees are excluded from redundancy pay. You then tell me that they aren't excluded but that agency workers are. The second sentence of my OP said "I have a contract of employment". Does that not mean I was an employee?

They guaranteed hours and thereby did they not guarantee pay for those hours at NMW? By dismissing me, they avoided going into another year for which they had guaranteed hours.

In fact I could not turn down work when I wanted. My contract says "You are obliged to work when required by XX" and that my employment could be terminated if I unreasonably refused to undertake an assignment.

It seems to me they have now treated me as a worker rather than an employee, as it seems you have done.

They told me they would send me a P45 not because I had turned down work but because they had not heard from me for weeks, That was not true: less than a week before the letter we had spoken about my availability for work. They told me they would issue a P45 in the future when in fact they had already ended my employment according to the P45 issued. When I have written to them about the "termination of my employment" they have not denied that my employment was terminated. I have not turned down any work offered. Only after I had received the P45, did they ask whether I would like my CV put forward for a role (no actual offer of work as the client would be looking at other candidates). If instead they had sent me to the assignment to start the next day, I would have been obliged to work it and would have had to give them a week's notice if I did not wish to continue.

Again I say I was an employee of the agency. I thought that an employee of an agency was not the same as an agency worker.

Thank you for your advice about being an agency worker.

I'll go and check through the law about temporary employees because the document named "Contract of Employment" says it is governed and construed in accordance with the law of England and Wales.

marybelle01

Temporary workers and agency workers are two entirely different things. And an employee of an agency is STILL an agency worker. But I give up. You are determined to have it your way despite the same advice from at least two different sites. So all there is left to say is that first you will have to prove that your employment was terminated, and that it was unfairly terminated. Because if it hasn't been terminated then you aren't owed anything - you have had your guaranteed hours and you aren't entitled to any more. And even if it has been terminated, then you aren't owed anything - because you have had your guaranteed hours and you aren't entitled to any more. That'll cost you £1,200 in tribunal fees. Still interested in the general principle, since you say you aren't interested in the money?

PS - Just double checked. You are not paid between assignments under the Swedish derogation. Therefore you are not an employee, but a worker. So yes, the agency lied to you.