Maternity rights question to pose at ET?

Masomnia

nicechap wrote: »

Quite.

But there's no update on the discrimination accusation.

It seems to be more a case of they said this/ didn't say this, they claim I lied, I can prove they lied as opposed to whether the refusal to allow return to work was discrimination.

Also i note that they did decline work but then took it on (whilst on maternity leave in their view, whilst on a an agreed break from the organisations view), and they admit they worked odd hours/ days, so very much like a freelance/ consultancy contract.

Agreed, could look either way. I suppose if it were me I'd try to get them to admit that I personally had to do the work and if I couldn't do a shift it wasn't open to me send someone in my place... that seems to be how these 'self employed' arrangements are falling down at the moment.

I feel a bit for the OP here because if you don't know much about employment law then proving your employment status could be really tricky; and by the sounds of it a lot more difficult than the discrimination claim!

A lot of solicitors will do short consultations for free and I think it's well worth trying to get some advice like that, and unless it's too late pay a solicitor to do your letter if they think you have a case, because otherwise it sounds like the tribunal won't even hear the discrimination case at all.

nicechap

As well as finding out whether the OP got SMP, and if so who paid it, it would be interesting to know if the OP paid NI and if so, was it taken at source or did the OP pay it. However, that might just prolong the OP's pain at the outcome.

jobbingmusician

I'll start with the caveat that I am not an expert. However, I am intelligent and logical. And I have just discovered that you can't multi-quote more than 3 posts at a time.....so I've scrapped the quotes. I hope it will be obvious which points I am attempting to address in this post.

Workers are allowed to bring claims for unfair dismissal. The employer seems to have referred to the OP as a worker in writing, and then changed this assertion at the tribunal to an assertion that the OP was freelance. So the main point on which the tribunal was decided (from what we have been told here) was that the employer asserted AT TRIBUNAL (and not before) that the OP was not a worker.

I agree it might well be an idea to get some professional advice at this point. However, I also think it's a good idea to have a model in your own head of what the arguments are. If you find, on reviewing the papers, that the employer made no reference to you being freelance, and did indeed assert that you are a worker, then I would think you have good grounds for appeal. (Again, I stress that I am no expert. But surely the point of exchanging bundles is so that there are no surprises. If the employer introduces a major point like this at the hearing, without prior notice, you have no chance to defend it. Even a lawyer wouldn't necessarily have picked up the fact that the employer had acknowledged your worker status in the correspondence.

If the employer had seriously believed you were a freelance, they would have applied to have your ET struck out, far earlier in the proceedings. I actually suspect (but I am a cynic) that the judge introduced the idea that you might be freelance, and the employer jumped on this bandwagon enthusiastically, without realising that they had acknowledged your worker status in writing (as possibly, as has been suggested, in the payments they have made you and deductions they have made from your pay.)

I look forward to other input to this subject, and do let us know what happens.

[Deleted User]

I am very sorry this happened to you. Unfortunately this happened to my ex too. The ex employer produced a bundle at trial, my ex was given 20 minutes to read it. Not being legally experienced, he didn't say in the tribunal that this wasn't enough time to absorb and make an argument in answer to the employers bundle.

The Judge didn't give any weight to the evidence my ex had, totally believed the employers evidence although with more time (having seen the employers bundle before tribunal) we could have disproved totally false witness statements.

When we appealed he said that my ex did not say he'd not had enough time to peruse the employers bundle, form any arguments so our appeal was just turned down.

Definitely gives you a negative view of the law. Definitely not justice.., but there you go.

Crazy_Jamie

I appreciate that this is an old(ish) thread, and I can't add anything substantive to what was advised above, but I just wanted to correct two points from jobbingmusician's post in the event that someone is looking at this way after the fact.

jobbingmusician wrote: »

Workers are allowed to bring claims for unfair dismissal.

This is not correct. You have to be an employee to bring a claim for unfair dismissal. Workers have the right to bring discrimination claims, but not unfair dismissal claims.

jobbingmusician wrote:

If the employer had seriously believed you were a freelance, they would have applied to have your ET struck out, far earlier in the proceedings. I actually suspect (but I am a cynic) that the judge introduced the idea that you might be freelance, and the employer jumped on this bandwagon enthusiastically, without realising that they had acknowledged your worker status in writing (as possibly, as has been suggested, in the payments they have made you and deductions they have made from your pay.)

This is also quite clearly not correct. When there is a dispute as to employment status, it is entirely standard for the Tribunal to list a preliminary hearing to determine that issue. That is exactly what happened here, hence the OP's reference to this having been a preliminary hearing. In any event, the OP has also confirmed that the issue of status was raised in the ET3, so it is wholly wrong in any event to suggest that the Judge introduced that idea. It was part of the Respondent's pleaded case that the OP was self employed. A preliminary hearing was listed to determine that issue. The Judge's role was to make a finding on that issue, and that finding went against the OP. It's that simple, and your cynicism is misplaced.