How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask Ben Jones Your Own Question

Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 44929
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
29905560
Type Your Law Question Here...
Ben Jones is online now

I have an employee who does not have a contract she has been

Customer Question

I have an employee who does not have a contract she has been working at the shop for two years without paying any NI or tax, i took over the shop 8months ago she is now pregnant and want s me to pay her full wage for a year and she wants to stop work in april when she is 4 months pregnant
please help
I am a working mum so i want to the right thing
Thank you
Submitted: 2 years ago.
Category: Law
Expert:  Ben Jones replied 2 years ago.

Ben Jones :

Hello, my name is Ben and it is my pleasure to assist you with your question today. Why hasn't she paid NI or tax?

JACUSTOMER-u4oja2z4- :

Hello ben

JACUSTOMER-u4oja2z4- :

when i took over the cafe they did not pay tax or Ni for a whole year for the staff and they were below the minium wage it was a cash in hand place

JACUSTOMER-u4oja2z4- :

I do understand that it is new years eve so I will contact you on the 2nd

JACUSTOMER-u4oja2z4- :

Happy new year !!!

Ben Jones :

Thanks. Happy new year. Let me consider this and come back if you don't mind?

JACUSTOMER-u4oja2z4- :

hi Ben

JACUSTOMER-u4oja2z4- :

I will be more precise, my husband and I brought the cafe in march, there were two girls working full time the previous owner was very harsh, they were paid £5 per hour and treated badly. when I took over I didn't give anyone a contract because as I had inherited them I wanted to get to know them to see if they were suitable.They had never paid tax or Ni I assumed they were selfemployed.I had to close the shop in july for major refit as it was in a terrible state.

JACUSTOMER-u4oja2z4- :

I paid the part time 6.30 per hour and the full time £7 per hour.A few weeks ago she told me she was pregnant and that I had to pay her full smp for a year and give her a full time contract .I do not want to employ her as I have haf a few bullying issues in the past 8 months and i feel that she is not to be trusted. I have told her she can work for as long as she likes but I will be seeking legal advice. I hope that is a little clearer.

JACUSTOMER-u4oja2z4- :

happy new year

Ben Jones :

Hello again, so let me explain your legal position in this situation. When you took over the business you would have been legally obliged to take on all existing employees and continue employing them on their existing terms and conditions. Whilst they may not have had a written contract in place, a contract would have been implied in any case and certain implied terms would have existed. So generally any terms that are deemed to have existed, such as pay, working hours, etc - terms that have been consistently applied, will have been implied terms.

Another consideration is that the employees would have preserved their continuous service so the time they worked for the previous owner will count and be added to the time they have worked with you. This is important in terms of their employment rights which I will describe below.

First of all maternity pay. Whether an employee received SMP depends on whether they meet the eligibility criteria, which you can find here:

https://www.gov.uk/maternity-pay-leave/eligibility

The main rules are that the employee must earn at least £109 a week and have been employed for 26 weeks in the 15th week before the baby is due to be born. So if she meets the earnings threshold she simply needs to remain employed with you until the 15th week before the baby is due and she will then be eligible for SMP. You can find the rates here:

https://www.gov.uk/maternity-pay-leave/pay

She cannot go off on maternity leave when she is 4 months pregnant. The earliest she can go off is around 11 weeks before the baby i due to be born.

In terms of dismissal, her rights will depend on her length of service. Remember that the time with the old employer will count as well. If she started working for the old employer before 6 April 2012 then she has enough service to be protected against unfair dismissal. If she started after 6 April 2012 then she needs 2 years service to be protected so she could potentially be dismissed without being able to challenge it. The issue then is that you cannot dismiss her due to a reason connected with her pregnancy as that would be discrimination so you cannot just dismiss her to avoid paying SMP or having to let her go on maternity leave.

What Customers are Saying:

 
 
 
  • Thank you so much for your help. Your answers were really useful and came back so quickly. Great! Maggie
< Previous | Next >
  • Thank you so much for your help. Your answers were really useful and came back so quickly. Great! Maggie
  • A quick response, a succinct and helpful answer in simple English. I believe I can now confront the counter party with confidence -- worth the 30 bucks! Rick
  • Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help. Mary C.
  • This expert is wonderful. They truly know what they are talking about, and they actually care about you. They really helped put my nerves at ease. Thank you so much!!!! Alex
  • Thank you for all your help. It is nice to know that this service is here for people like myself, who need answers fast and are not sure who to consult. GP
  • I couldn't be more satisfied! This is the site I will always come to when I need a second opinion. Justin
  • Just let me say that this encounter has been entirely professional and most helpful. I liked that I could ask additional questions and get answered in a very short turn around. Esther
 
 
 

Meet The Experts:

 
 
 
  • Jo C.

    Jo C.

    Barrister

    Satisfied Customers:

    30316
    Over 5 years in practice
< Last | Next >
  • http://ww2.justanswer.com/uploads/EM/emus/2015-7-7_192327_bigstockportraitofconfidentfemale.64x64.jpg Jo C.'s Avatar

    Jo C.

    Barrister

    Satisfied Customers:

    30316
    Over 5 years in practice
  • http://ww2.justanswer.com/uploads/BE/benjones/2015-12-1_0437_ennew.64x64.jpg Ben Jones's Avatar

    Ben Jones

    UK Lawyer

    Satisfied Customers:

    11553
    Qualified Solicitor - Please start your question with 'For Ben Jones'
  • http://ww2.justanswer.com/uploads/BU/Buachaill/2012-5-25_211156_barrister5.64x64.jpg Buachaill's Avatar

    Buachaill

    Barrister

    Satisfied Customers:

    1754
    Barrister 17 years experience
  • http://ww2.justanswer.com/uploads/JO/jojobi/2013-3-19_0265_maxlowryphoto.64x64.jpg Max Lowry's Avatar

    Max Lowry

    Advocate

    Satisfied Customers:

    894
    LLB, 10 years post qualification experience
  • http://ww2.justanswer.com/uploads/UK/UKLawyer/2012-4-12_9849_F2.64x64.jpg UK_Lawyer's Avatar

    UK_Lawyer

    Solicitor

    Satisfied Customers:

    750
    I am a qualified solicitor and an expert in UK law.
  • http://ww2.justanswer.com/uploads/KA/Kasare/kasare.64x64.jpg Kasare's Avatar

    Kasare

    Solicitor

    Satisfied Customers:

    402
    Solicitor, 10 yrs plus experience in civil litigation, employment and family law
  • http://ww2.justanswer.com/uploads/OS/osh/2015-7-7_19268_gettyimagesb.64x64.jpg Joshua's Avatar

    Joshua

    Lawyer

    Satisfied Customers:

    8199
    LL.B (Hons), Higher Prof. Dip. Law & Practice