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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 45370
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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Do I have an unfair dismissal case under IR35 if I was let

Customer Question

Do I have an unfair dismissal case under IR35 if I was let go while on holiday by txt message. After I made a complaint about an perment employee physically threating me in work. I worked for a large company (Alstom) as a quality manager for 18 months.
Submitted: 4 months ago.
Category: Law
Expert:  Ben Jones replied 4 months ago.

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today.

Expert:  Ben Jones replied 4 months ago.

Please can you provide some more information on the complaint you made against the employee?

Customer: replied 4 months ago.
Hi BenThe reason for the issue was I started dating a colleagues ex and he didn't like it and threatened me in work. I made a compliant to the person in questions boss I have some emails on the subject. The answer I received was this wasn't a company issue so ring the police. unless I was assaulted in work there was nothing they would do I went on holiday a couple of weeks later and they let me go while on holiday for that reason.
Expert:  Ben Jones replied 4 months ago.

Hi there. Thank you for your response; please leave it with me. I am in court today so will prepare my advice during the day and get back to you at the earliest opportunity. There is no need to wait here as you will receive an email when I have responded. Thank you.

Expert:  Ben Jones replied 4 months ago.

Hi there sorry I tried to get back to you earlier but had connection issues. I just wanted to check why you mentioned IR35 - are you officially self employed? Also how long have you worked there for?

Customer: replied 4 months ago.
Hi Ben no worries I was employed through an agency so technically I was self employed. I worked for them for 18 months I was told that you have similar rights as employed staff after 3 months.
Expert:  Ben Jones replied 4 months ago.

Ok thanks. I am afraid you will not be able to pursue an unfair dismissal claim here, whether you were covered under IR35 or not.

That is because if you have been continuously employed at your place of work for less than 2 years then your employment rights will unfortunately be somewhat limited. Most importantly, you will not be protected against unfair dismissal. 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.).

If the dismissal had nothing to do with any of the above exceptions then you would not be able to challenge it and your only protection would be if you were not paid your contractual notice period, because unless you were dismissed for gross misconduct, you would be entitled to receive your contractual notice period. If you did not have a written contract in place you would be entitled to the minimum statutory notice period of 1 week. Your employer would either have to allow you to work that notice period and pay you as normal, or they will have to pay you in lieu of notice.

This is your basic legal position. I have more detailed advice for you in terms of the options you have to challenge the if you were not paid what you were 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, there is no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you

Expert:  Ben Jones replied 4 months ago.

Hello, I see you have read my response to your query. Please let me know if this has answered your original question and if you need me to discuss the next steps in more detail? In the meantime please take a second to leave a positive rating by selecting 3, 4 or 5 starts from the top of the page. The question will not close and I can continue with my advice as discussed. Thank you

Expert:  Ben Jones replied 4 months ago.

Hello, do you need any further assistance or are you happy with the above response? Look forward to hearing from you.

Customer: replied 4 months ago.
Hi BenOk that's great, but if I don't have an unfair dismissal case against the company then do I have a civil case against the guy making the accusations that caused the dismisal ? They where unfounded and as a contractor in a small industry reputation is everything ?
Regards
Chris
Expert:  Ben Jones replied 4 months ago.

Were the accusations spread to others, were they used in a reference? Please remember to leave your rating please so I can continue answering your follow up questions, thanks

Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 45370
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Law Specialists are ready to help you
Customer: replied 4 months ago.
They where spread though out the company this caused Alstom to blacklist me as a contractor, I would like to seek damages.
would that be possible?
I will rate this now
Expert:  Ben Jones replied 4 months ago.

Thank you. Were the statements they made untrue?

Customer: replied 4 months ago.
completely untrue !
Expert:  Ben Jones replied 4 months ago.

This could be defamation and whilst this may appear to be a potential case of such (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:

1. The statement has to be untrue.

2. It must directly identify the complainant.

3. It must have been published, usually communicated to at least another person.

4. 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.

5. 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.

Customer: replied 4 months ago.
Thanks Ben, so basically American tv shows are misleading, I'm shocked, I've now binned my Boston legal box set ! Thank you again for your time !
Expert:  Ben Jones replied 4 months ago.

American v UK law is very different - over there you could probably get sued for looking at someone the wrong way - we have a more traditional and robust system

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