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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 am a contractor working on a zero hours contract for a Ltd

Customer Question

I am a contractor working on a zero hours contract for a Ltd Consultancy Company. My contract is between this Consultancy Business and my own Ltd Company. While working on an assignment with one of their clients they have contacted the Consultancy and accused me of unsatisfactory performance AND alleged (and I quote from a phone call with the Consultancy Partner) "Racist, Sexist and Homophobic" comments made on the client's premises during a meeting with 2 individuals lasting around 3 hours. I have been working with this client via various face to face meetings and phone calls over a period of around 2 months. The result of this allegation is that the Consultancy has removed me from the assignment. The partner concerned has told me that he considers the whole episode as a "clash of personalities" and this alleged incident will not influence my chances of further work with them with other clients. I have provided my side of the story, defending my performance (with tangible reasons that he has acknowledged) and completely denying the other allegations. I am a n established Interim Manager with a good track record of over 20 years of client engagements supported by references and would never dream of making inappropriate comments like this. My career depends on solid and reliable professional track record.
Having been round the block I am certain this will completely compromise my standing with the Consultancy and the promised future work will not be forthcoming. I am quite familiar with UK employment laws and had I been directly employed by this client company, I am confident I could pursue a wrongful dismissal case through tribunal. The nature of my relationship with them in this case makes things obviously more complex.
Given that my standing with the Consultancy company involved is likely compromised I would like to understand my options –

• Pursuing a case of wrongful cessation of work at a company level between my own company and the consultancy.
• Pursuing a Defamation of Character case against the Client Company Directly

Either way I would be claiming damages with respect to loss of income from this and other potential assignments. I would like to understand the legal mechanism of how this could be pursued and likelihood of a successful outcome.
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.
Can you please tell me how long have you have you been with your employer

Ben Jones :

sorry ignore my last post that was meant for another client.leave it with me I need to look up a few things and then get my advice ready.I will post back on here when done there is no need to wait and you will receive an email when I have responded.

Expert:  Ben Jones replied 2 years ago.
Many thanks for your patience. You are correct that due to the nature of your employment you could not pursue a wrongful dismissal in the tribunal and so I will deal with the options you raised below:

1. Pursuing a case of wrongful cessation of work at a company level between my own company and the consultancy.

There is no such claim and you would be looking at a breach of contract claim instead. However, the issues are twofold – first of all you are working under a zero hours arrangement so there is no obligation on the employer to provide you with any work and if they really wanted to they could just stop supplying any work, regardless of whether this was based on rumours by third parties, and they would still be acting lawfully because their actions would be allowed by the contract you have with them. The only other option is if they had to give you a contractual notice period to actually terminate your employment but did not do so, in which case you can pursue them for breach of contract for the lack of notice, although what damages you can recover would be a contentious issue as strictly speaking they could have given you notice and not given you any work for the notice period and you would have earned nothing anyway.

2. Pursuing a Defamation of Character case against the Client Company Directly

Whilst this may appear to be a potential case of defamation (this includes libel if it is in written form, or slander if it is in oral form), such claims are extremely difficult to pursue. Many people are intent on suing for defamation without having any appreciation of the law behind them, so I will try and clear things up for you now.

First of all, certain conditions must be met for the statement to be classified as defamatory. These are:
• The statement has to be untrue.
• It must directly identify the complainant
• It must have been published, usually communicated to at least another person.
• It must be in a form of words, which would tend to lower the claimant in the estimation of ‘right thinking members of society generally', expose the claimant to hatred, contempt or ridicule, or cause the claimant to be shunned or avoided.
• Its publication has caused or is likely to cause serious harm to the reputation of the claimant.

Whilst it may be easy to prove that defamation has occurred, the legal process of pursuing such a claim is extremely complex and expensive. As this goes through the High Court, you would need the professional help of specialist defamation solicitors and the costs are undoubtedly going to run into the thousands right at the outset. Also there is no legal aid available for such claims so the complainant must fund these personally. So when you hear about defamation claims being made, these are usually pursued by big corporations or celebrities who have a public image to protect.

You must also consider whether the party alleged of making the defamatory statement can defend the claim. Even if you satisfy the criteria to prove the statement was defamatory it could be defended on a number of grounds, including by providing evidence that the statement was substantially true or an honest opinion.

There is of course nothing stopping you from contacting the other party and threatening them that what they have done amounts to defamation and that you will consider pursuing the matter further if they do not retract their statement. This could prompt them to reconsider their position, but I would not recommend that you actually proceed with a claim for defamation due to the issues highlighted above.

3. Either way I would be claiming damages with respect to loss of income from this and other potential assignments. I would like to understand the legal mechanism of how this could be pursued and likelihood of a successful outcome.

As mentioned above the main issue here is that you were working on zero hours arrangement, where no guaranteed work existed so to claim damages when no guarantees existed would be rather difficult. Also you must look at the termination clause in your agreement and what that would be because the likelihood is that you can only pursue them for losses equal to the work you may have done during the notice period (that is because at any time and regardless of the reasons they could have given you notice of termination and legally they would have terminated your employment that way so it is really the maximum loss you could expect). However, as discussed above that will also be a potential issue because of the lack of any guaranteed work as you were on a zero hours arrangement, so there will certainly be some issues to consider and identifiable risks in pursuing it further, although you may of course do so at any time.

I hope this has answered your query. Please take a second to leave a positive rating, or if you need me to clarify anything before you go - please get back to me and I will assist further as best as I can. Thank you and feel free to bookmark my profile for future help:


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Customer: replied 2 years ago.

Ben,


Thanks for the comprehensive response. I think you have basically confirmed my view that pursuing damages is unlikely to be successful and potentially very expensive.


 


The only recourse I would now consider is to write to the personnel department of the client company to express my view that the individual (s) concerned has acted in an unprofessional manner. I would give reasons for my rejection of the claims regarding my performance and state that the allegations of racial or homophobic statements are completely false plus supporting reasons as to why it would be so unlikely that I would have made any such comments given the cirumstances. I would also state that its my belief that this has had a detrimental affect on the relationship with the consultancy and resulted in lost income.


 


I would ask for -


 



  • A detailed explanation of the areas of my performance found to be unsatisfactory

  • Specifically what I was alleged to have said that was offensive


 


And finally that I was considering taking this further depending on their response.


 


My aim here is to at least raise the matter formally within the company and hopefully prevent further such false claims on others. Of course this would certainly result in no further assignments from the Consultancy - but as I stated, this is already the case anyway.


 


Before I do this could you give some thought as to -


 



  1. What if any negative outcomes could result from this (either commercially or legally) and their likelihood.

  2. Whether I am better off pursuing this complaint personally or through my Limited company

  3. Combined with 2. above, whether more weight will result from the letter coming from a recognised tribunal / litigation solicitor


 


Thanks,


Graham

Expert:  Ben Jones replied 2 years ago.
Hello Graham

There is certainly nothing stopping you from raising the matter directly with the company that made the comments and trying to resolve the matter with them that way. This is not a legal issue as such and would become a personal one where you are seeking answers and would hope that they provide you with an explanation.

In response of the specific queries you had:

What if any negative outcomes could result from this (either commercially or legally) and their likelihood.

That would be difficult to predict because it depends on the people behind the scenes and how they perceive this and what they believe they should do in response. For example, someone spiteful and with influence in the industry could make it difficult for you to get jobs with others that they have connections with as it would be rather easy to ‘blacklist’ your name unofficially. However, as mentioned the difficulty in predicting this is that you just don’t know who you are dealing with and what their intentions are. Also it could be extremely difficult to prove if it happens as it is all done behind closed doors and usually verbally, through word of mouth.

Whether I am better off pursuing this complaint personally or through my Limited company.

From a legal point of view it would not matter whether you pursue the complaint personally or as the company, either way you are a representative of the company so it can be done from both, because the remarks affect you both personally and as a company.

Combined with 2. above, whether more weight will result from the letter coming from a recognised tribunal / litigation solicitor

A formal letter from a solicitor could indeed add more weight to the complaint and prompt the company to take it more seriously. It would not hold any legal weight in terms of guaranteeing they deal with it appropriately or even respond to it, but if someone receives a letter from a solicitor thy could actually reconsider their position more than if it just came from you.

If your original question has been answered I would be grateful if you could please quickly rate my answer - it only takes a second to do and is an important part of our process. I can still answer follow up questions afterwards if needed. Thank you
Expert:  Ben Jones replied 2 years ago.
Hello, I see you have accessed and read my answer to your query. Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this?

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