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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 10388
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Hi I was employed for 18 months with an ifa, and in nov 2012

Customer Question

Hi
I was employed for 18 months with an ifa, and in nov 2012 he told me I had to go self employed. I asked on waht terms he replied that I was only alowed to work for him, my salarie would remain the same, holidays would be paid, i was to work from his offices at times he dictated and sign in and out, and he provided the work/clients. all documents to clients were sent on company paperwork and invoices raised by the company and paid to them. Please could you firstly confirm if I was an Employee and the implications of his actions above and below?
My employer was having a few problems and job certainty was looking a bit dodgy. I had a day off annual leave on wed 11TH Sept and arrived back Thursday to find out that he had layed off all remaining staff. I was called to a meeting where I was advised that my post and job as will writer were being made redundant effective immediately. In the same sentence they offered me to continue working on will on a free lance basis. I advised that I would accept the redundancy but think about the free lance offer, knowing it was not right and I would probably decline the offer. I recieved a call that day from a employer in london offering me work which I accepted. I asked for a meeting with my manager and advised that I would not take up the freelance offer and would be finishing on Friday (24 hrs later) I was advised this was fine but asked if i could help or work for free for 2 weeks before going to london. I advised no but that if they were stuck ie did not know where files were kept i could tell them if they text. I thought that I was being nice. Unfortunately I was given no notice of redundancy prior to these events and did not have time to complete my files and one still remains open. I took this to complete over the weekend as I felt an obligation to my clients as they were vulnerble and my boss had already caused several delays in this case ( I have evidence of this). I agreed with my boss and had in writing that two files had powers of attorneys drafted but that I did not have time to register them we agreed to send the forms to the clients to register them and that my boss would provide registration fees. i also have this as evidence. Since then he has been emailing me and pestering me about cases and problems they are having not only with wills but the ppi dept. they have been scanning documents to me and will not leave me alone. what can I do I have tried wording a letter re this but it has been ignored, they are claiming I was self employed as a will writer and the clients are mine and that i should be responsible for them. as you can see above I was clearly an employee and the clients were that of the company. Please could you advise me what I can tell him so that he can go away without causing trouble for me in my new job? I also want to know if I am liable for anything that happened to files while i was employed and after as he is insinuating this?

Thanks Jess
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is Ben and it is my pleasure to assist you with your question today. When did your employment actually terminate?

PS: As I am going offline shortly I may not be able to provide my final advice now but will do so first thing in the morning, thank you

JACUSTOMER-9phptqb5- :

18/07/2011. ta.

JACUSTOMER-9phptqb5- :

I leave for work at 8 so best way to get hold of me is email. thanks

Ben Jones :

Good morning, a person's rights will largely depend on their employment status. Establishing one's employment status is not an easy task and there is no single test that can be used. It is usually irrelevant what a person is labelled as by their employer because their status would not depend on that, but on the overall employment relationship, how the employer treats them, etc.

Following years of case law, a number of established factors have generally been accepted as a reasonably accurate way of establishing whether someone is an employee or self employed. The courts would still use some of these to get an overall picture of the employment relationship and determine the person's employment status.

The tests that are most commonly used can be found here:

http://www.hmrc.gov.uk/employment-status/index.htm#1

By following the link and answering the questions one may get a good idea of what someone's employment status is, although it is worth noting that these are still only an indication and only a court can provide a definitive answer. They are nevertheless useful to use in negotiations with the employer.

Assuming you were an employee and the clients were the company's then they will have final responsibility over this. Saying that if you were negligent in your work the employer can potentially pursue you for compensation for damages but I do not believe this is the issue here and I have not seen anything to suggest you are accused of negligence, rather they want your help with work you were involved in.

Also, if you were self employed it would be for the clients themselves to chase you for the work in question, the employer cannot get involved any longer if these were your personal clients.

Finally, if you believe that they are contracting you without any grounds to do so and you have told them to stop, their continued communications could amount to harassment. Under law (specifically the Protection from Harassment Act 1997 in civil cases and the Criminal Justice and Public Order Act 1994 in criminal cases), a person must not pursue a course of conduct which amounts to harassment of another and which he or she knows or ought to know amounts to harassment. Although there is no definition of what specifically amounts to harassment, it would usually include alarming a person or causing them distress and must have occurred on at least two occasions.

So in the first instance the police can be contacted and have this reported to them as harassment. However, they will not often get involved in trivial disputes so if they believe that this is not serious enough they could refuse to help and advise you that this is a civil matter. In such circumstances, the offender could be warned that their actions are being treated as harassment and that unless they refrain from such behaviour in the future they will be reported to the police and legal action will be taken against them.

JACUSTOMER-9phptqb5- :

how can I word an email best to my ex employer?

Ben Jones :

Whilst drafting is not part of our service, you can use the detailed information in my advice above to prepare something yourself and I can take a look at it before you send it out

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