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Ben Jones
Ben Jones, UK Lawyer
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Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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/Madam. Please advise me urgently. On Thursday

Resolved Question:

Dear Sir/Madam.
Please advise me urgently.
On Thursday night I received a letter giving me notice of my statutory rights with regard to my dismissal and five days in which state whether or not I agreed with the disciplinary action taken against me.
The Agency cannot get involved as they are third party and so I tried to contact my local Citizen's Advice on Friday but the voicemail said they would not be open until between two and four o'clock pm today. I rang at two o'clock promptly but a voicemail message said that the voicemail was full and no messages would be taken. There is no e-mail facility at my local office.
I have seven weeks notice in writing from 29th December to 19th February 2015 and I am advised that I actually have the upper hand in all this but I do not know how to word things to my employer with regard to having to wait to have it all addressed independently.
I have avoided going around there as I know there is someone there with her and so I have only sent e-mails (designed to apologize but also to put my feelings forward in the first instance and a subsequent e-mail sent whilst I was on holiday in December in an effort to try and help clarify what it was I could and could not do for her, having already spent many, many hours over time, dealing with hugely differing kinds of emergencies day and night which I had attended without thought for myself or any extra money. The letter she had sent previous invited me to go over and discuss a new contract and that I should tell her what I could and could not do. The e-mail I sent was not meant to be set in stone but as I pointed out afterwards merely meant as something to mull over while I was on holiday so that both her demands and my work-life balance could be discussed (not exact words but put nicely).
I then received a curt letter of dismissal saying I could not meet the conditions she required. I was still on holiday and had not had a chance for the 'chat' which she felt sure would have us both move on jointly again, together.
The lady from her direct payment agency said on Thursday afternoon that she felt sure I would hear from my employer and so would wait to contact me at the end of closing on Monday (today).
On the Thursday night however a letter was put through my door which I showed family and friends - all agreed that it would appear spiteful, vindictive and malicious insofar as it would seem to try to indicate that the dismissal was the disciplinary action, rather than the earlier formal warning.
After 50 years with an unblemished record in nursing (my main speciality cardiothoracic surgical and (Course taken): Care of the Severely Disabled and the Young Chronic Sick, I retired in 2008 to take on this role and be one minute away from my mother in the process. My mother was 90 on January 4th and this did not help her frailty and stroke risk one bit. I am not anxious for any compensation or anything like that - I have no wish to return there at all, as I feel and have felt for some time that this person was a danger to me professionally. I simply want the excellent reference I deserve.
Twice she said she never wanted to lose me. Twice she gave me a pay-rise. The Agency said that seven years standing is a reference in itself but it is her that will be called on to provide it, probably by 'phone and I do not trust her one iota any more. Please help and tell me what I should say and whether it is acceptable by e-mail or not.
Thank you so very much, for any help you can give and for setting up this website.
Rosemary (aka Rosie) Adams. (e-mail:*****@******.***).
Submitted: 2 years ago.
Category: 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. How long have you been employed by this employer and are you actually an agency worker rather than a permanent employee of the company?

Customer:

Hello Ben - I started work with my employer on 21st January 2008. I retired from nursing as RN1 Adult after 43 years to take up this role and look after my mother, then aged 82 and frail, disabled herself. My employer suffers from a congenital spinal degenerative disease which has left her wheelchair/bed-bound with increased weakening to her hands. The local Council pays into an Agency account under the Direct Payment Scheme and the Agency is third party payroll but also provides Personal Assistants and Home Carers to the Council itself. In this way they say that I do have the upper hand as all this goes but that they cannot advise me themselves as they are not allowed to divulge anything I tell them to the client nor anything she tells them to me - they advised me to seek proper legal advice from the local Citizen's Advice Bureau but the tone of the conversation on Monday led me to believe that my employer may still want a tete-a-tete and I think it was hoped by the Agency that we could resolve things amicably and start over as my employer had previously suggested in a letter on 23rd December. I was interviewed prior to my start there and a contract drawn up - I do not seem to have a copy of it - but the day after I started work, one minute's walk from home, I turned up to work to find that she had broken her leg and so the terms of the contract were totally blurred as she was going to need extra and emergency help from time to time for the duration of having her heavy plaster cast further impinging on her disability. Her mother came down from Coventry aged 82 and said she was thrilled that her daughter had a nurse to look after her in the circumstances and told me how much she was going to worry about things upon her return to the Midlands whereon I immediately settled her mind by telling her I was one minute away and would not dream of doing anything else but help her daughter through this difficult time. I did over my remit on this many, many times without complaint but I think the pattern was set and I was called upon time and time again after her recovery to attend to emergencies both day and night which I did without complaint. The Agency told me that once I was taken on for the role that they were not the employers - that she alone would be the employer.

Ben Jones :

Hi, sorry I was offline by the time you had replied.

The agency is correct that the person you were caring for would legally be your employer and that any rights you have will be against her.

As far as your rights in relation to dismissal are concerned, if an employee has been continuously employed with their employer for at least 2 years they will be protected against unfair dismissal. This means that to fairly dismiss them their employer has to show that there was a potentially fair reason for dismissal and that a fair dismissal procedure was followed.

According to the Employment Rights Act 1996 there are five separate reasons that an employer could use to show that a dismissal was fair: conduct, capability, redundancy, illegality or some other substantial reason (SOSR). The employer will not only need to show that the dismissal was for one of those reasons, but also justify that it was appropriate and reasonable to use in the circumstances. In addition, they need to ensure that a fair dismissal procedure was followed and this would depend on which of the above reasons they used to dismiss.

If the employer has not provided a fair reason for your dismissal or conducted a fair procedure (i.e. they just issued you with notice of dismissal without having a meeting with you or providing any reasons), then the likelihood is that the dismissal is unfair. You could potentially take a claim for unfair dismissal against the employer, although you would be required to go through ACAS first and use them as a negotiator to try and agree on a financial settlement before you are allowed to claim. Whether you should go on to claim would depend on a number of reasons, such as if you have found a new job since then because that will significantly reduce your level of compensation and if it is worth taking an elderly individual to tribunal, for example would they actually have the money to be able to pay you any compensation they are ordered to.

However, in the meantime you can use the above information to negotiate with them over the dismissal and try to either get your job back or to agree some settlement under which they pay you and you leave on amicable terms.

Hope this clarifies your position? If you could please let me know that would be great, thank you

Ben Jones :

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? Thanks

Customer:

Ben, Hello and thank you for getting back to me.

Customer:

Dear Ben,

Customer:

Dear Ben. Thank you for getting back to me - and I thought you had 'gone'! Long story cut short - v offensive remarks made by employer October re my mother (90 & v frail - 1 min walk from work). I was seething but remained calm & professional but remarks kept coming + some new 'commitment' remarks. I have a Friday delivery (Mon/Fri days off each week) from Abel & Cole 4 w/end as difficult with job + mother 2 get out & shop. Told client on Sat 13th Dec. that I had been told that Xmas delivery was coming on Sun 21st to ensure foods fresh 4 Xmas. On Thurs. 18th Dec. told client that I had had 2 double order from company as I had lost my Visa so that I had not been able 2 order online Sainsbury's for my usual Monday delivery but that Abel & Cole had said that I could order everything I needed from them & pay when new card through. My client asked a few relevant ?'s & then agreed that they were a good company & I reminded her again of the Sunday delivery (Sunday was one of her bath days). On leaving her flat on Saturday 20th Dec I gave a quick & final reminder about the Sunday delivery. At weekends my contract start time was 0930 hrs to be brought 4ward in summer so my client could enjoy more of the longer warmer days. (She is in a wheelchair & it was part of my job to get her up). She became my employer the moment the contract was signed for work start 21st Jan

Customer:

Dear Ben - T Y 4 your reply. I thought y had gone! My client became my employer moment contract signed 4 work start 21st Jan 2008. I retired from 43 years nursing to look after my mother then 83 yrs. post-stroke syndrome + v frail. P A/Home Carer 2 client as 1 min walk away from home so my mother 'safe' with client's approval to 'pop back & check' x1 during work. On 2nd work day I turned up & client's leg in plaster, broken. Her 83 year old mother going back 2 Midlands v anxious re my client & reassured that as only 1 min away I would help (much extra work 2 do/adapt to but did not think 2 draw up new contract). Work fine over 7 years but client upset/hurt me x 2 in last 3 yrs. Forgotten/forgive. Moved on. Quite recently client's boyfriend often visiting 1-2 days at a time & I was asked 2 just go in earlier than usual and sweep, damp mop, empty bins & clean sink/bath etc as boyfriend would get client up & not 2 make any noise that would awaken him as often awake at night. I agreed. Oct 2014 client made cutting remark about my mother, asking if she resented the care given to my client. I was furious but stayed calm & said my mother did not think that way & had certainly never said anything like it. I mentioned it 2 my sister who said it was probably the client who resented my mother & I my thought at the time was "Don't judge my mother by your own mean standards" but I didn't say it & remained professional & calm. On Dec 21st I was half hour late on a/c of delivery & on arrival client said she had just called my home but no answer. I said it was because my mother was asleep & I was on my way round to the client. She made a remark about my mother & I reminded her about the delivery. (I had started her bath running on going into the flat.) I went to sit her up saying I was very sorry & that she needed the loo (put as ?) but was curtly told to leave her in bed while bath running whereon I asked her (as we had agreed) not to ring unless it was emergency as mother unable to answer 'phone & she said I should have my mobile (didn't think 2 take it that morning - 1 min away - I just rushed off after taking the delivery). She raised her voice and shouted that it was 10 o'clock & I told her that it was on a/c of the delivery & that I had told her 3 times about it during the week. She answered by saying I should make my delivery times to suit her rather than to suit myself & I repeated that I had nothing to do with the Xmas delivery determined by the company whereon she just answered again that I should have told them I had her to see to and had it delivered on Friday (I have a letter from the Company stating that they hoped their change in the delivery day had not caused any inconvenience & hoped the food fresh 4 Xmas). I was by now seething and I raised my voice back stating that I had not had any control in the matter & had fed her the info. 6 times including this (sic) morning. She took on a very calm countenance and said quietly and firmly that she knew 'nothing' of the Sunday delivery. She then said asked to sit up & attached her hoist while I turned off the bath. She started to go on and on and on about my mother and my mother's needs coming over her own and that I should be organizing my deliveries to suit my client not myself. I shouted at her that my mother did not come into it. She had told me previously that her boyfriend was expected that day but she could not be sure if it was Sunday or Monday he would come (Monday my day off). I was due a week's paid holiday in December and I know it was not professional but my nerves were terribly fraught with all this accusation & it did not seem to be getting either of us anywhere. She told me to leave and so I did but I left so quickly that I left my spare key behind. I still had the main key which she had given me the previous Xmas with a huge reindeer key-ring on it. I left and later 'phoned to apologize but said I had bent over backwards over the 7 years to help her, going over at 3am when called because her bed was 'lumpy' or at 12mn on a/c of her having dropped her remote control & that she too had been rude. offensive and disdainful whereon the voicemail was cut off. I received a letter the following day to say that my outburst had been completely unacceptable & that my mother's needs were now increased as were her own. She said she was drawing up a new contract the conditions of which were listed within. She ended by saying that she felt that with the air cleared we could both now move on and discuss our mutual needs over a new contract. As I was on holiday I sent an e-mail, again saying that I had often been asked to attend her early in order to meet deliveries coming to her or to go over of an afternoon to assist with deliveries from shops or to help unload her car of plants and compost bags & take them through to her garden. That my deliveries were made specifically to match my days off & that 21st Dec was a 1-off out of my control & that any time not worked on Tuesdays or Thursdays because of not much to do was made up for on Sundays and Wednesdays when it was bath/hairwash + usual workload. (The girl meant to 'cover' my days off was booked for work with my client even though she has a school job which she starts at 0730 so she shops for my client instead by car in the afternoons - but this leaves all the morning baths on my shoulders. She only booked cover at my insistence because I said if I was ever sick or in hospital she would be left vulnerable. I spent three hours after time one day putting leaflets out locally for her to help her find someone). I sent the e-mail in good faith that we could once again meet each other over table to discuss more fully and amiably the way forward & to go over the pending new contract together but a day or two later I received 7 weeks notice and told that I had not fulfilled the conditions of the new contract ( one I had neither seen nor signed nor still have). I e-mailed that I had been prepared to take unpaid leave on a/c of the manner in which I 'took' my holiday but that that was when I thought I had a job to go back to. I said that having seen her letter to me that now the feeling was entirely mutual & I would be more than happy to terminate and work my 7 weeks notice. The agent asked me a week later if my client knew that I had a key & I said she did - that it was my main key which she had given me. I further wrote & thanked my client for clarifying my entitlement for moneys owed up to and including 15th February. I sent her an e-mail asking her to e-mail me a copy of my contract which she has not responded to. Our mutual agent asked yesterday if I was working my notice and I said that in spite of the fact that one of the very early letters had said my client would be in touch she had not called me to go in. The agent said she could not advise me as she had no legal qualifications but that I 'must' seek legal advice with regard to 'unfair dismissal'. I have been reluctant to do this as I do not want a protracted performance with this client over all this but the direct payment for my salary is paid in the main by the local Council for which the Agency acts as payroll. The agent says she can find me more work close to home - no problem - the fact that I have also cared for my mother along with a reference/character reference to that effect is sufficient & that the 7 years with this client along with praise + 2 pay rises during that 7 is a reference in itself but that I absolutely MUST go ahead for 'unfair dismissal'. My son thinks she may be working some kind of 'scam' & that the Agent is trying to protect me from any future worry on this score. I am so sorry Ben - this is so protracted - CAB only open Mondays 2-4 & voicemail full & not taking messages. 'Phoned ACAS yesterday - left voicemail - awaiting reply but cannot afford potential legal fees.

Ben Jones :

Hi, you can go fr unfair dismissal but a new feature in the employment tribunal’s claims process is mandatory early conciliation with ACAS. This requires prospective claimants to notify ACAS and provide details of their intended claim and they would then try to negotiate between the claimant and respondent to seek out of court settlement in order to avoid having to take the claim to the tribunal. It is possible for the parties to refuse to engage in these negotiations, or that they are unsuccessful, in which case they would get permission to proceed with making the claim in the tribunal.

If negotiations are initiated and settlement is reached, then the claimant would agree not to proceed with the claim in return for the agreed financial settlement.

The conciliation procedure and the form to fill in can be found here:

https://ec.acas.org.uk/Submission/SingleClaimantPage

In terms of the time limits within which a claim must be presented, the early conciliation process places a ‘stop’ on that and the time between notifying ACAS and them issuing permission to proceed with the claim would not count for the purposes of these time limits (3 months from dismissal in the case of unfair dismissal)>

So before you are actually lowed to make a claim you must negotiate using ACAS. Only if negotiations are unsuccessful would you be allowed to make your claim.

Ben Jones :

Hope this clarifies your position? If you could please let me know that would be great, thank you

Customer:

Dear Ben.

Customer:

Dear Ben - Dismissal date was by letter 29th December > last working day 15th February.

Customer:

ACAS Solicitor 'phoned yesterday and said most claims would be on 'No Win No Fee' basis and althouth

Customer:

Dear Ben (3rd attempt!)

Ben Jones :

Hi your message appears to have been cut short, not sure if you had connection issues, could you please try again, thanks

Customer:

Dear Ben, (3rd attempt) - Dismissal by letter 29th Dec 2014 > last working day 15th Feb 2015. ACAS based Solicitor phoned Friday and said I had a case for unfair dismissal and would more than likely win but that on a 'No Win No Fee' basis there would be something even if small in it for me (by my terms) but by any Solicitor's terms not much in if at the end of the day and he for one would not take it on? I told him that client is in a wheelchair and very voluble re disability rights - very forthcoming with rudeness but when told she is rude she then seeks 'shelter' in her disability. I felt it may make me look bad to make a case against her but he reiterated that I DID have a case - just not one that he was prepared to take on. He also said that whilst I would be entitled to 7 weeks redundancy pay on top of the 7 weeks pay under notice that I would be entitled to small but significant compensation but that this would be reduced on a pro rata basis with any work I had managed to undertake in the interim of claim put and claim paid. He said that no one could make me claim and that it would be time consuming and protracted but that the employer may feel a smugness and if I can handle that I am probably best to just move on. He did say that I have a right to the copy of my original contract for January 2008 and that she must provide this but so far she has ignored my request for it.

Ben Jones :

Hi, not many employment solicitors take cases on a no win no fee basis so if the margins are low then it is going to be difficult finding someone willing to take it on. But you do not need a solicitor to make the claim, I have dealt with many cases where the employee has made the claim themselves and carried it on alone, without any legal help. Also remember that you have ACAS to conduct a conciliation process before you are allowed to make a claim, where they try and negotiate with the employer to reach a financial settlement without the need to go to tribunal.

As to the contract, you do have a right to see that but cannot physically force her to issue it to you. So if she refuses to do so then you cannot use anything to force her to give it to you.

Has this answered your original query please?

Customer:

Dear Ben, thank you for your help. I just want a copy of my original contract - the one drawn up for my start date of 21st January 2008. I have e-mailed a request to my employer which has been completely ignored.ACAS Solicitor said I have a case for instant dismissal but that under the #No Win No Fee' criteria Solicitor would come out with little to show - even on a win - he was concerned however that employer appears to have left me 'dangling' and that all her letters are ambiguous, saying she would be in touch when she hasn't been with regard to me actually working my notice or with regard to dismissal with 'immediate' affect and that she appears to be keeping all her options wide open but leaving me in the dark. He did say that whilst I am still employed (up to February 15th) she is duty-bound to hold my original contract and that I absolutely must obtain a copy. Since she has ignored my request how should I go about this? Would Citizen's Advice be able to send her a letter on my behalf or do I need to pay an Employment Law Firm to send a letter to her with a formal request? Even the payroll agency (3rd party) has insisted that they can find me another job through their recruitment offices but that I must have a copy of that contract as proof of my work record for this woman was according to that contract and no other over the last seven years. Any other contract drawn up by her has neither been seen nor signed by me and forms the basis of my dismissal and the original contract was not a 'varied' contract. This is my very last question - promise. Very many thanks, Rosemary.

Customer:

Hi Ben! Thank you! Briefly ACAS Solicitor said I had been unfairly dismissed and would win a case but based on No Win No Fee concept no Solicitor would want to take it on as compensation levels would be small - significant perhaps for me - but not for any Solicitor taking his percentage. He said all the letters from my employer were ambiguous and that she had neither specified immediate dismissal nor to work notice in any of them - he said that she had effectively left me dangling. He was concerned that I should receive a copy of my contract (that is the one drawn up, seen and signed by me in January 2008 before my employment is terminated and was concerned that she had not responded to my request for same on yesterday week. He said that I had a legal entitlement to a copy of this contract. As CAB is consistently closed or not taking messages how do I ask for it again. I don't have time for another 'ignore' as once my employment is finalised (Feb 13th) she could destroy it? What is my best way to secure it before that date?

Customer:

Ben - That is brilliant. Thank you. I have no desire to issue a claim against her and just want to move on with my life but the solicitor and the 3rd Party Agency were just very concerned that her ambiguity had left me with nowhere to go. Having said that she would be in touch she has only written to clarify entitlement and in spite of the fact that I have a key has not called upon me to work my notice. At this moment in time she is away with her boyfriend (she drives an adapted car) and my first pay should be forthcoming tomorrow - that is four weeks from date of notice to include three weeks notice. The Solicitor said that I must make sure I get my money since it is her that has left me dangling and that is the benchmark I would have to use in making any claim against her. As long as I get my full 7 weeks notice pay I am OK but it is my son's birthday tomorrow and I will be very cross if the money is not forthcoming as stated in my entitlement. The Solicitor also helped me by saying that I should hold on to the key until my final employment date (15th Feb) when I am supposed to receive my two weeks holiday pay and return it by Registered Mail. You have both been a tremendous help and thank you for having the patience to answer all my queries. I just have to check with the pay-roll people re my pay going in to my account tomorrow morning! The Solicitor says I should be paid because I have been ready, with my key, to work my notice but that she hasn't called on me because she obviously has somebody else to look after her. Her boyfriend has been with her since just before my dismissal on 29th December and I will not go over there alone while he is there. Does any of this make sense? A lady who lives close to both of us (who does not gossip) asked me if I was still working for my employer as she had seen her going out in the car with a man who visits her regularly and who had been staying there since before Christmas and that the car was still away. If my employer is at her mother's as I think she needs her boyfriend to escort her on the journey and during the stay, even when I was working there I could not make the journey and the week's stay in Coventry on account of my own mother's needing me here - but she needs to be at home with her computer access to transfer my money in. Fingers crossed.

Ben Jones :

Hi, CAB could potentially send a letter on your behalf but that I all they will be able to do, they cannot force the employer to issue you the contract copy. You could also send a letter yourself, you need to make a subject access request, a template letter ad more information is here:

https://ico.org.uk/for-the-public/personal-information/

Even if you do not get a copy now, if you were to make a claim in the tribunal the employer would be obliged to provide that as part of the documentary evidence and if necessary you can ask the tribunal to require the employer to provide a coy as part of their evidence.

Customer:

Dear Ben - That's brilliant and thank you for all your patience! My main concern now is that I get paid according to the entitlement clarified by letter saying that I was to receive four weeks pay on 22nd January (tomorrow) that to include three weeks notice and a further two weeks holiday pay on Feb 15th which is my final day of employment. The Solicitor said I must insure I get my money as I have had a key and have been waiting to be called for work but she has had her boyfriend staying there since the day of my dismissal (she said prior that he was due over that day for Christmas) and they are now away since Sunday (probably in Coventry visiting her 90 year old mother - birthday this week) and are still away now. She has told me on previous occasions that she has to be back home in order to transfer my monies in via her PC but she has a tablet and maybe she can do it on that. It will be dreadful for me if I do not get my pay tomorrow as it is my son's birthday. The Solicitor said that all her letters to me were ambiguous and that she had kept me dangling but that as I had been told that she would be in touch and I had a key to gain entry for when she needed me I should receive my money. He said that the best thing was to return the key on my final day of employment (Feb 15th) by Registered post. Fingers crossed but at least I know now that if I am not paid I can go back to ACAS to negotiate a settlement. I really, really hope it doesn't come to that however. If it's OK I will let you know tomorrow how things pan out. Not to ask questions but just to let you know the outcome for me on payday! TTFN, Rosemary.

Ben Jones :

Not sure if you saw my last response above as it may have crossed with your one but please take a look at what you can do to try and get the contract copy. And I do hope that you do not have to take any legal route to pursue this, but at least the option is there if you need it .

Ben Jones :

Look forward to hearing from you with an update, in the meantime please take a second to leave your rating for the service, many thanks

Ben Jones, UK Lawyer
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