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Ben Jones
Ben Jones, UK Lawyer
Category: Law
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Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I have been employed as an external consultant for the past

Customer Question

I have been employed as an external consultant for the past year and was told in early December that my rolling contract would not be renewed. Soon after this I came down with what I thought was flu but was later told by my Doctor was a depressive episode and severe anxiety. My line Manager rang my home number that evening and was told I was unwell. I saw my Doctor on the 3rd Dec and was given a fit note for two weeks. I sent this by post to my office. I then received an email from HR asking me to contact them, I did so and was told that my line manager had stopped my salary from being paid and had decided I was on Holiday rather than on sick leave. I was then asked to attend the office to return all company property to HR before I would be paid. I drove the 120 mile round trip to the office (whilst still signed as sick) and did as requested. I have now been paid, not up to the end of my contract, but with deductions as (in their view) the contract had been breached by me being unavailable through sickness. I have since learned that the original sick note was apparently not received by my manager. I have supplied a duplicate from my Doctor but this has not resolved the matter. I have been paid 1 week of my sickness subsequently but the second week was not paid as I had been in the office. Obviously I was only in the office only because they had asked me to attend to hand back laptop, phone etc. before they would consent to pay my previous months salary.

In effect I have been denied 2 weeks from the 15th-28th Dec as the last two weeks of my contract and 17 days annual leave accrued over the year which was been substituted for my sick period.

As a contractor I was paid £300 per day so am owed £5,100 before tax as Holiday pay and £1,500 before tax as the missing week of sick pay.

£6,600 in total.

The company is not willing to discuss the matter further so I must recover these funds via other means.
Submitted: 3 years ago.
Category: Law
Expert:  Ben Jones replied 3 years ago.
Hello and thank you for your question, which I will be happy to assist you with. Please let me know if you were considered an employee or self employed?
Customer: replied 3 years ago.

I was treated as an Employee.


 


I was paid monthly by BACS and had an employee number for payroll.

Expert:  Ben Jones replied 3 years ago.
you keep referring to yourself as an external contractor though, who was on a daily rate and that does not sound like an employee. Can you please follow this link and after answering the questions let me know if you believe yourself to have been an employee or self employed

www.hmrc.gov.uk/employment-status/index.htm#1
Customer: replied 3 years ago.

I answered yes to all of the first questions. I was only treated as an external for budgetary reasons. They had no money for a permanent headcount but had a need for a senior manager, described as a contractor, to run projects and manage a small team (4 people)


 


Basically they needed to employ someone to plug a gap in their team but could not wait to go through the normal process of advertising the role internally, then externally, then out to recruiters.


 


I had a contract, initially for 8 weeks, which was continuously extended at every review.


 


I would definitely consider myself as an employee and that link confirms my view.

Expert:  Ben Jones replied 3 years ago.
This potentially amounts to an unlawful deduction from wages, which is illegal according to the Employment Rights Act 1996.

Under law, an employer can only make deductions from, or withhold an employee’s wages in the following circumstances:
• If it is legally allowed (e.g. to deduct tax);
• If it is to recover an earlier overpayment of wages made by the employer; or
• If the employee has given their written agreement for the deductions to be made.

If none of the above exemptions apply, the deductions will most likely be unlawful.

In order to try and resolve this, the employer should be contacted in writing, advised that this is being treated as unlawful deduction of wages and ask them to pay back the money within 7 days. Also state that if they fail to pay the money that is owed, legal proceedings could follow.

If the employer does not return the money as requested, the following options are available:
1. Employment Tribunal - this is a free claim, although the time limit to claim is only 3 months from the date the deductions were made. To make the claim the following form (ET1) needs to be completed: (http://www.justice.gov.uk/forms/hmcts/employment)
2. County Court – whilst this is not free, the time limit for claiming is 6 years. Therefore, it is useful if the Tribunal deadline has been missed. The claim can be made online by going to: www.moneyclaim.gov.uk.

Hopefully by taking any of these steps the employer will be prompted to reconsider their position and try to resolve this without having to take the matter any further.

Please take a second to leave a positive rating as that is a very important part of our process. Your question will not close and I can continue providing further advice if necessary. Thank you

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