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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 45339
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I have been working for a firm for 3 years although I have

Resolved Question:

I have been working for a firm for 3 years although I have paid my own tax and N.I. but I have no contract whatsoever. I have worked approx. 120 hours a month average in that time. The hours I received were subcontracted by another firm to the one that paid my wages. The firm that gave out the hours suspended me and 3 days later sacked me without even giving me an opportunity to defend myself which I do not think is right. Do I have any rights to claim any type of unfair dismissal or defamation of character?
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.

Ben Jones : Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. Can you please follow this link and after answering the questions, let me know what you believe your employment status is
Ben Jones : http://www.hmrc.gov.uk/employment-status/index.htm#1
Customer:

From what I can make out I should be classed as a worker. I am given hours and tools to do the same 2 jobs week in week out and have been for the last 3 years. All I get is an invoice from the firm that pays my monthly salary and they are then paid by the firm that subcontracts the hours out. I then have to pay my own Tax and N.I.

Ben Jones :

Hi, sorry I was offline by the time you had replied. Just to clarify, who made the decision not to have you back on site – the company to which your work was subcontracted or the firm that sends you there?

Customer:

The company where the work was subcontracted from.

Ben Jones :

Your rights will depend on your employment status and if you were an employee as you said, then these will be better than if you were self employed. If an employee has been continuously employed with their employer for at least 2 years they will be protected against unfair dismissal. This means that to fairly dismiss them their employer has to show that there was a potentially fair reason for dismissal and that a fair dismissal procedure was followed.


 


According to the Employment Rights Act 1996 there are five separate reasons that an employer could use to show that a dismissal was fair: conduct, capability, redundancy, illegality or some other substantial reason (SOSR). The employer will not only need to show that the dismissal was for one of those reasons, but also justify that it was appropriate and reasonable to use in the circumstances. In addition, they need to ensure that a fair dismissal procedure was followed and this would depend on which of the above reasons they used to dismiss.


 


However, there are circumstances when an employer may feel forced to move or even dismiss an employee because of pressure from a third party. This pressure may come from a valued customer or from another third party that has a degree of influence over the employer, such as a supplier, the landlord of their premises, etc. Such a dismissal can be deemed fair because it would amount to 'some other substantial reason' (SOSR), which is one of the potentially fair reasons for dismissal allowed under the Employment Rights Act 1996.


 


It is generally accepted that the reason behind the third party's request is irrelevant and there is no requirement on the employer to establish the truth behind the allegations. What really matters is the how important the third party's continued business is to the employer and what risks there are to that relationship if the employer does not act as per the request.


 


For example, in the case of Dobie v Burns International Security Services, Mr Dobie was a security guard working for a contractor who supplied security staff to a Council. Friction developed between a senior Council employee and Mr Dobie, with the Council demanding his removal from their site. His employer eventually dismissed him. He made a claim against his employer, however he lost with the decision being that third party pressure to dismiss can amount to a fair reason for dismissal.


 


Employers must still act reasonably when dismissing, in accordance with established employment principles and would need to undertake some form of investigation and hold a dismissal meeting. They should also consider whether there is any other alternative employment that can be offered to the employee instead of dismissing them because dismissal should only be seen as a last resort. However, in principle, such dismissals can be fair.


 


So whilst there may have been a fair reason for a potential dismissal, the procedure does not appear to have been followed correctly so the dismissal could still be unfair. You can consider challenging this in the employment tribunal by making claim for unfair dismissal within 3 months of your termination.

Customer:

Thank you for your help

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 45339
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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