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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 48209
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Good afternoon, i was offered in writing after interview a

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Good afternoon, i was offered in writing after interview a 3 day a week position as a gardener on a private estate in Faringdon, Oxon. I was told that it was a permanent contract with holiday, sick pay etc. On my first day the head gardener said that her boss now wanted to employ me on a "self employed" basis as it was "cheaper for him" I am not happy with this as its not what I agreed and they are saying its a 3 month probationary period before i will be given a contract and "self employed" until then with no mention of any terms or conditions or allowances etc. I gave up a full time permanent job of 4 years to do this job. Please could you offer me any advice. I have looked at the CAB website and understand so much of what my position is. Many thanks, David
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.
Hello, my name is***** am a solicitor on this site and it is my pleasure to assist you with your question today. Were you told you had a notice period in this position, for example what notice you were due should your employment be terminated?
Customer: replied 2 years ago.

i haven't been told any notice period

Expert:  Ben Jones replied 2 years ago.
The main problem you would face here is that if you have been continuously employed at your place of work for less than 2 years then your employment rights will unfortunately be somewhat limited. Most importantly, you will not be protected against unfair dismissal. This means that your employer can dismiss you for more or less any reason, and without following a fair procedure, as long as their decision is not based on discriminatory grounds (i.e. because of gender, race, religion, age, a disability, sexual orientation, etc.) or because you were trying to assert any of your statutory rights (e.g. requesting maternity/paternity leave, etc.). Stating that they are not taking you on as an employee but as self employed basically means they would be dismissing you from your employee position which they offered you and then re-employing you on a self employed basis. So this is really a dismissal in law. If the dismissal had nothing to do with any of the above exceptions then you would not be able to challenge it and your only protection would be if you were not paid your contractual notice period, because unless you were dismissed for gross misconduct, you would be entitled to receive your contractual notice period. If you did not have a written contract in place you would be entitled to the minimum statutory notice period of 1 week, although that only applies once you have been there for over a month. If you have not been there a month they can dismiss you without any notice. So in effect they could legally refuse to employ you as an employee because they do not have to give you any notice of that and also you cannot challenge it as you do not have enough service. I'm sorry if this is not necessarily the answer you were hoping for, however I do have a duty to be honest and explain the law as it actually stands. This does mean delivering bad news from time to time. I hope you understand and would be happy to provide any further clarification if needed. If you are still satisfied with the level of service you have received I would be grateful if you could please take a second to leave a positive rating by selecting 3, 4 or 5 starts at the top of the page. Thank you
Customer: replied 2 years ago.

Thanks Ben, I know that what you've said is obviously pretty certain but I read on the CAB website that its illegal to make a job offer and then change the terms and if i've given up a job to do it then i could go after them for loss of earnings etc.

Expert:  Ben Jones replied 2 years ago.
Could you please point me to the web page which says that to see what they actually mean so I can clarify with you?
Customer: replied 2 years ago.

Hi Ben, Sorry its in bold but here is the link and i've found the part copied below


https://www.citizensadvice.org.uk/work/rights-at-work/contracts-of-employment/#h-what-if-the-employer-wants-an-employee-to-switch-to-self-employed-status


If you are offered a job and the offer is then withdrawn


If an employer has offered you a job but then changes their mind and withdraws the offer, whether you can take any action will depend on whether the job offer was made subject to any conditions.

If the job offer was subject to conditions, for example, the employer needed to take up references or you were required to have a medical, and these were unsatisfactory, you will not be able to make a claim against the employer for any compensation. This is because there was never any contract of employment. There was only a conditional offer of a job and the conditions have not been met.

If the job offer was unconditional, which is unusual, you may be able to claim compensation in the employment tribunal or the county court (Court of Session in Scotland) for breach of contract. This is a breach of contract because you were offered the job with no conditions, you accepted the offer and then the offer was withdrawn. Although the job has not started, it has been decided that once a job has been offered and the offer has been accepted, there is a contract of employment. If the employer then withdraws the job offer, this will be dismissal and a breach of contract. If you have given up another job because you were offered the new job, you can also claim compensation based on what you were earning in your previous job and on how long it would have taken you to find another job had you left that job to find another one.

If an employer withdraws a conditional job offer even though all the conditions were met, you may also be able to claim compensation in the same way.

If you think that the job offer has been withdrawn because of discrimination, you could consider making a discrimination claim to an employment tribunal. You would first need to investigate the circumstances around why you were not given the job, to see if the reason was really discriminatory or not.

Expert:  Ben Jones replied 2 years ago.
That is the basic position but there is more to it than just that. There is a breach of contract here even if no contract was issued to you. The breach is that the employer has not proceeded with the offer of full employment. Instead they have decided to offer you self employment. However if the pay is more or less the same then you would not have suffered any losses. Also remember that the law is very clear on dismissals within the first 2 years - you are not protected against unfair dismissal. So even if you were taken on as a permanent employee and gave up another job, they could have legally decided to terminate that job at any time within the first 2 years without you being able to challenge it. Sonic does not really change your position unfortunately. Hope this clarifies things a bit more for you?
Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 2 years ago.

Thanks for your advice, at least I know the facts and i don't have to waste anymore time on it.