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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
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I am having issues after letting a couple of employees go,

Resolved Question:

I am having issues after letting a couple of employees go, hence the barrage of questions I'm sending.
The latest from a girl I secured the part time services of around 4 years ago.
She was initially employed for a few hours a week on a part time casual basis and payed from my personal account ? (why did i do that !).
She then graduated to working more full time and was paid from the company account but always as self employed and thats how she appears, with others in the company audited accounts. She eventually became a director and registered at company house as such (no shares).
Around August 2014, I employed her along with another self employed guy who had been with us around 2 years as their positions where at that stage obviously permanent.
I let them all go at the end of January 2015 to a company who employed them directly from me but with no formal agreement, just a nod that they would be taken on as employees of the new company.
They where allowed to keep phones and computers belonging to my company until they where up to speed with the new company and when I asked for them back a week or so again, I am faced with a garage of claims. The latest being from the girl asking for Statutory redundancy for the 4 years she worked ?
There was never a break in employment and this cross over was organised by me.
Has she a claim do you believe ?
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.
Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today. when you let them go did you pay all monies owed to them holiday pay and final salary payment please.

Customer:

Hello Ben

Customer:

As far as I am aware they where fully paid up, yes.

Customer:

They had only been in direct employment for a few months.

Ben Jones :

OK thank you, ***** ***** it with me. I am in a tribunal today so will prepare my advice during the day and get back to you this afternoon. There is no need to wait and you will receive an email when I have responded. Thank you

Customer:

Any answers please Ben ?

Ben Jones : Hello, I posted my full response last night but on checking it does not appear to have registered. This may be because I am using a mobile signal and at the time I posted it the connection may have dropped and it did not transfer over to the site. My sincere apologies for that and for the delay you experienced as a result. I will post my response again below and check that it has posted correctly this time. The main issues here are - was this person an employee; were they dismissed and did they have more than 2 years' service as an employee. Only if all of these conditions are satisfied will they be able to claim redundancy pay from you. The first issue is what their employment status is - are they an employee or self employed? Only employees can claim redundancy so she would have to show that she was an employee. You state that she was initially self employed and then taken on permanently. A person's employment status is actually determined not by what their employer refers to them by but it is based on the actual employment relationship and how they are treated. There is unfortunately no easy way to work that out and it is based on many factors established after years of case law. Usually only a court can determine that but to get a good idea you may want to use this employment status indicator tool: https://www.gov.uk/employment-status-indicator. It could be that for part of their employment with you they were an employee and for another part, self employed. What matters is whether at the time of alleged dismissal they were an employee and if at that same time they had 2 years' continuous service as an employee behind them. They cannot include service as self employed in this calculation and it must be continuous service so without any break the past 2 years they must have been employed as an employee.The next issue is whether there was a dismissal when they moved over to the other company. It is possible that a law known as TUPE may have applied here. This is where one employer takes over a part of another business or the services which were provided by another business. Any employees attached to the part of the business, or performing the services which were undertaken by your company, but moved over to the new employer, will automatically move over to that new employer. The laws regarding this are complex and there are a number of factors that must be met for this to apply but the general rule is that if TUPE applies, the employee moves over to the new employer and keeps their terms and continuous service and there is no dismissal. If that is the case there is no redundancy payment due.So as you can see there is a good chance that you can defend any potential claim for redundancy pay as long as this person was not dismissed and did not have 2 years' continuous service as an employee at the time of alleged dismissal. If she wants to pursue a redundancy payment it is for her to take the matter further and issue a claim in the employment tribunal. She has to prove that she meets the criteria set out above to qualify for such a payment. You could raise the arguments mentioned earlier to try and make it clear that you are not due to pay her any redundancy and it is up to her to decide whether she wants to challenge it further - if she wants to then that cannot be helped as it is her right to do so.I hope this clarifies your position and my apologies again for the delay in responding. If you could please let me know whether your query has been answered I would be grateful. Thank you
Customer:

Ben, thats all great thanks.

Customer:

I will study the content and revert later if thats okay. Quite a lot to take in !

Customer:

David

Ben Jones : No problem just get back to me if needed
Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 2 years ago.

Ben

Just trying to get this sorted now and your advice is very helpful and so can i ask a few more questions please.

The employee (or self employed person) commenced work for the company as a part time girl Friday on 1st August 2011.

The employment was ceased on 20th January 2015 as a company director.

So the total employment period was 3 years 5 months.

As she was part time for around 15 months in the beginning, would she, if proven to be an employee, be entitled to full statutory redundancy as per the government guide lines please ?

Also, she is claiming 4 weeks notice period although told on the 20th of January and paid until 31st January ?Can I deduct the 11 days from the 4 weeks please.

I will make a contribution at the end to compensate your time.

Thanks

Expert:  Ben Jones replied 2 years ago.
Hello, an employee’s redundancy pay is calculated based on their salary at the time of redundancy. So they could have been part time and then gone full time or vice versa, bit what matters is what position they are being made redundant from and as such the redundancy is calculated based on their pay at the time of redundancy.
In relation to the notice period, that starts to run from the date you actually issue the person with formal notice of termination. So if you had advised her on 20 January that her employment was being terminated, that is when her notice period would start to run. If you had paid her up until the end of January that can count as part of her notice period and can be deducted from any additional payments you make towards her notice period. Also not sure if she is claiming 4 weeks’ notice because that is stated in her contract? If it is then you will have to pay that, if she is only claiming it because she argues it is what her statutory notice entitlement would be, then she would only be entitled to 3 weeks’ pay as she only gets a week’s notice for every full year of employment and with 3.5 years behind her she only has 3 full years’ service.
Hope this clarifies things a bit more for you?
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