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Ben Jones
Ben Jones, UK Lawyer
Category: Law
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I run a nursing agency (Company A) whereby we supply

Customer Question

I run a nursing agency (Company A) whereby we supply healthcare staff to hospitals nursing homes. The company is very small and in October 2013 I met the owner of (company B) who were registered providers to the NHS. That is they had the license to supply to NHS. We had several meetings with CompanyB and as they were based in Grimsby they needed a local regional office (Birmingham). Company B offered to employ me on £20k and offered a 15% profit sharing. My role was to recruit nurses locally and fulfil all compliance requirements. Once a nurse was fully registered the file was passed onto headquarters who were responsible for bookings.
I commenced employment with company in October2014 and they started paying me weekly. A few weeks into employment I realised they were only paying me £17500 and so I raised this with the director. He said it was something that would get rectified in the profit share at the end of the year. This never transpired and I was told there was no profits. The shareholders funds for company stood at £777,000 (according to accounts filed with company house in April 2015).
I was given an employment contract and the terms and conditions stated 12 months. Each time I raised a concern I was told it was something they would rectify. I had a meeting with the directors in November 2015 and I was misled into believing the business was growing and the profit share would be kicking in soon.
On 7th Jan 2016 I was sent a redundancy notice and given 2 weeks pay and 2 weeks outstanding annual leave. I feel that I have been falsely induced into a business contract. CompanyB used me to regionally build their business and once they met the targeted recruitment levels they issued redundancy, and fooled me all the while.I have been told there is a law that protects small companies like myself. Can I pursue a legal claim against company B on the basis of misrepresentation or any other law ?
Submitted: 1 year ago.
Category: Law
Expert:  Ben Jones replied 1 year ago.
Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today. Was your employment as an individual or as a business - did they take you on via your company, or just as an individual?
Customer: replied 1 year ago.
They took me on as an individual and I have several emails from the director confirming the profit share, even though he never gave me a business contract. He completely misled me and short changed me at each mile stone attained.
Customer: replied 1 year ago.
I can send you a copy of the employment contract. The director fooled me into believing this was a long term relationship and would grow in time.
Expert:  Ben Jones replied 1 year ago.
if you can attach here that will help. I am due in a meeting shortly so won't be able to respond until later on, thanks
Customer: replied 1 year ago.
He issued two employment contracts. Please find attached the latest contract.
Expert:  Ben Jones replied 1 year ago.
Thank you, ***** ***** looked at it. In the circumstances you were employed as an individual and you will only be able to rely on those employment rights which any individual employee may have in your position. Your initial relationship where you were working as an agency would be irrelevant at this stage because that ended when you joined them under a separate employment contract to work personally for them. So anything you were thinking of in terms of protection against small business does not apply here. This was not a business contract, it was an employment contract between you as an individual offering your services to the company. The issue you will face is that as an employee you do not have protection against unfair dismissal in the first 2 years of employment. 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.). Even if you were employed under false pretences, legally they can choose to dismiss you at any point within those first 2 years. Of course you would still be entitled to receive any payments or benefits you were promised under contract. Looking at your terms this should have been £20k a year. There was no mention of the profit share in the contract but that does not mean you cannot hold them liable for not including in it. Even if this was a verbal agreement, it could be legally binding if there was an offer (by them) an acceptance (by you) and consideration (such as you taking the job as a result). The issue is if this was all verbal it would be your word against theirs so it could go either way if challenged. In summary, you cannot challenge the dismissal or the reasons you were employed in this company but you can challenge if you were not paid what you were due whilst working for them or after leaving, if such payments were due. This is your basic legal position. I have more detailed advice for you in terms of the steps you can follow to pursue any amounts you are due, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, leaving a rating will not close the question and we can continue this discussion. Thank you
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Customer: replied 1 year ago.
Hi BenPlease find attached an excel spreadsheet which shows a chronology of events with email dates and content (can be used as evidence). I have craeted a separate work document which shows the content of the emails in order of date confirming his offer. He failed to pay me £20k and profit share as originally agreed.You can see that the agreement was in writing and this fits the criteria :Even if this was a verbal agreement, it could be legally binding if there was an offer (by them) an acceptance (by you) and consideration (such as you taking the job as a result).I think I should be able to negotiate better terms with the directors on the basis of a real threat of legal action. I just don't know how to go about this and I seek your help. also not in gave them about 70 fully complaint nurses and within the directors email he states roughly 6 nurses are needed to break even. The nurses I supplied him would have generated him and average of around 400 hours per week with margins of £5 per hour. That would roughly make £2000 profit per week and his expense was roughly £7200 for office rent and expenses plus my salary. (£17500). Arcadia were clearing over £6000 per month.
Customer: replied 1 year ago.
Hi Ben I cannot add the files to this forum. can you send me an email and I will send you the files.
Customer: replied 1 year ago.
I think I should be able to negotiate better terms with the directors on the basis of a real threat of legal action. I just don't know how to go about this and I seek your help. Also note i gave them about 70 fully complaint nurses and within the directors email he states roughly 6 nurses are needed to break even. The nurses I supplied him would have generated him an average of around 400 hours per week with margins of £5 per hour. That would roughly make £2000 profit per week and his expense was roughly £7200 for office rent and expenses plus my salary. (£17500). Arcadia were clearing over £6000 per month.Thanks for your advise Ben and I look forward to hearing from you.
Expert:  Ben Jones replied 1 year ago.
Hello, you may indeed be able to meet the criteria to show that you had a binding offer to receive £20k and a percentage of the profit share. However, you have to remember that on dismissal you can only claim for what you were due so let’s say you only worked there for a year, it would be £2.5k (amount you were not paid) and whatever the percentage of profit share was for that year, up until termination. You are not looking at an ongoing claim, you can only claim for the period of employment and as per the agreement you had.Also it is unfortunately irrelevant what business you have generated for them – it was your job to do that and what you were employed for. All you can rely on is the agreements you had with them, so the contract and the verbal agreements that dealt with the profit share. That is all you can realistically rely on and claim for.
Customer: replied 1 year ago.
The business I generated for them proves the profitability generated by our efforts. Therefore theoretically speaking we should be entitled to 15% as per agreement via email. In addition the shortfall in wages.How can I pursue them and is it worthwhile ?
Customer: replied 1 year ago.
Also I am assuming I will not have a case for false misrepresentation. Please find attached the documents I could not upload earlier for your review. Thanks Ben for your advise.
.
Expert:  Ben Jones replied 1 year ago.
The business you generated will indeed aid in showing that there were profits made but in the end that would be a quesiton of fact when one sits down to look at the accounts of the company. So you would not be basing your claim solely on what business you generated and you must consider all incomings and outgoings and to do that you really need to look at the company's accounts which you can get online. I can only tell you what you can do, not whether it is worthwhile or if you will have a chance of success - this requires a formal case analysis, something you need to do with a lawyer in person. I can only say what the law is and what your rights are and how you can pursue them, but whether you do is up to you. In this case false misrepresentation will be of no use - you will not get anything more than what you are already claiming under breach of contract
Customer: replied 1 year ago.
Thanks Ben. There is definitely a breach of contract and I will try negotiating with them directly.
Expert:  Ben Jones replied 1 year ago.
I agree, bet of luck

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