Just a lil story of a Zero hour contract guy

gerard1789

Been working as a Temp Chef for the same agency since 2012.
Agency went into voluntary liquidation in Feb 2017 owing holiday pay to me and certainly all other Agency Workers. (Note that the agency is still trading but under a different limited liability entity).
Agency advised that receivers would organise payment of monies due.
Filed a claim with The Insolvency Service which was rejected on the basis that I was not an employee but an Agency Worker and suggested that I register as a creditor with the receivers. (Note that I do not expect any assets will be left after taxes and receivers fees are paid).

The failed Company seems to be offered more protection than its "workers". The Insolvency Service, very unhelpful and uninformative, seems bent on disbursing the least they can. The Receivers are keen to offer as an advice that "this would seem to leave you with little choice but to take your own advice in order to progress these claims".

How true this is as The Law Centers do not offer, any longer, legal advice on Work related matters and Citizen Advice Bureau seems unable to cope with demand.

Any comments, suggestions, advice on such matter will be greatly appreciated.

sangie595

You have been advised accurately. Workers do not have the majority of employment rights. The Insolvency Services have regulations laid down by parliament which dictate what they can and cannot pay. One of those conditions is that you must be an employee.

I do agree that the rise of new forms of contract have left some workers unprotected, and this is not fair. I'm sure parliament will be addressing this any time now....

gerard1789

Thanks Sangie for the comments.

To my newly acquired knowledge on that matter, the Insolvency Service (I.S) on one occasion agreed to pay sub-contractors/agency workers supplied to SSI Redcar plant by Jo Hand Recruitment of Middlesbrough. After a first rejection and an intervention by local MP Anna Turley, “The Redundancy Payments Service has now been able to establish that they are eligible for statutory redundancy payments, arrears of pay, notice pay and holiday pay.”

I am wondering what key information received after the initial rejection has forced The I.S to define the SSI sub-contractors as employees of either SSI or possibly Jo Hand Recruitment.

For the sake of transparency, I might attempt to request the S.I for further information on the SSI Matter. I do not know if they would be obliged to divulgate such informations.

getmore4less

Non payment of wages(which includes holiday pay) should make you a preferential creditor above tax.

gerard1789

I will mention that to the receivers but I guess that I will join the short queue of other common creditors as I was not an employee but an agency worker.

sangie595

The test for an employee in these circumstances is rather easy. Did you have a contract and what did that say (zero hours, I guess, from what you have said). Did you have the right to refuse work? Were you able to work for other people as and when you wanted to? Was there any pay between assignments ( the so- called Swedish derogation).? Did the employer sanction or punish you for refusing work with them? And although this one is not an absolute - did you work for the same client, the same hours, and all the time?

You don't need to get hold of the information on the other case - although it relates to personal data so will either be refused or so heavily redacted out makes no sense. But I know why the decision was changed. It was because the employees had worked for the same client for exceptionally lengthy periods of time (many years) during which they could not refuse work. That last bit was critical - their contracts actually said that they could not refuse work and could not work for anyone else. That made them employees. The law on this area is constantly evolving, and I would lay bets that the contract they had was "legal" when they started out, and the agency simply forgot to update it. Happens all the time.

If all they owe is holiday pay, getting a decision that you were employees not workers is going to cost you more than you could get back. A lot more. So unless you have something in writing as these other people did, then toy are basically screwed.

gerard1789

Yes you are right sangie, the monies owed represent roughly the costs of initiating a case at the Employment Tribunal.
And thought that would be the case of continuous employment that could have swayed the decision in the case of SSI.
Another avenue for pursuing some type of claim would be against the agency, due to the chronology of events preceding the official publication of insolvency.
19/01 I requested Holiday starting 06/02 to 12/02 - 7 days
20/01 Agency informs me that they have ceased trading
26/01 Notice issued of a creditors meeting on 02/02
02/02 Insolvency resolutions are passed at meeting at receivers
15/02 Official publication in Gazette of insolvency

Could the agency be deemed negligent in their handling of my holiday request which preceded insolvency?

Also some information received point to the fact that said agency could have been trading in the weeks prior to insolvency, and certainly is still now trading under a different limited liability entity.

sangie595

None of this gets you any money! It may be relevant to other matters, but not to whether you are an employee or not.

Even if negligent (and the answer is I doubt it anyway) then that does not make you an employee and eligible for redundancy or other payments from the redundancy payments scheme. It might have made you a case against the agency - but there isn't one so there is no case now.

The same is true of your suggestion that they traded whilst insolvent - yes that would be an offence if proven, but it doesn't change your position. And I am afraid that pheonixing - the term used to describe continuing business as a new legal entity - is unfortunately both legal and very common. It shouldn't be, but it is. I'd have to say that it would be a rare week if at least one of these cases didn't come through our office (and bear in mind it most often happens with small employers who are not unionised), and there is nothing we can do. You're lucky that you lost so little. Probably not a comfort to you, but many people lose at least a couple of weeks wages as well. It's frustrating for us, but the law says what it says - it needs to be changed.

Scorpio33

Very articulate replies sangie and very useful!

theronstar

You ruled out filing a claim at the Employment Tribunal because of the cost of filing a claim.

You can get help with fees if you are on a low income. That may be worth exploring.