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: Employment Law
Satisfied Customers: 50158
Experience:  Qualified Employment Solicitor
Type Your Employment Law Question Here...
Ben Jones is online now

Employment law Scotland I am an agency contractor working in

This answer was rated:

Employment law ScotlandI am an agency contractor working in IT. I have been working for the last 3 years with the same place, the 'client'. The contracts are always for a few months and then I am told they may be extended, and they have been. I have no sick pay, pension or so on. Once I was told I was not being extended and then they asked me back for 5 days a week. It's a big public sector place.
I was told I had to take 2 weeks holiday (unpaid). Then I got an email 2 days into holiday saying that there was an issue (small, easily resolved, but gave me stress). Then the next day there was an email cc'd to a few people by someone complaining about something I had done in trying to fix a problem (I was in touch with Microsoft and the name which was still registered was the previous person who had been in touch with them, and the complainer was saying this was a gross breach of something). I was told by my line manager that I should apologise, and I did that. Then I was told yesterday that over the phone that I've been dismissed for gross misconduct. I have had no warnings and nothing in writing. Just that I should go to outside the building and hand back a few things. I don't know what to do, if anyone can help
Customer: replied 1 year ago.
I am 42 years old and have done all they have asked for the 3 years, have good reviews and feedback including from the senior managers (all our work is assessed per task) and there is a lot of stress in the IT section we work in, and a lot of negative feedback about the person who usually said whether my contract was extended and who said I have been dismissed
Customer: replied 1 year ago.
they always said it was budget reasons why there was no permanent contract for me, and never encouraged me to get a better contract, one with the sick pay and usual employee benefits
Customer: replied 1 year ago.
they have also tried to sack another colleague (who was trying to fix an IT problem) but that was overturned by the more high up manager who said that he was angry he never even knew that someone tried to sack the person
Customer: replied 1 year ago.
my job roles have changed frequently and so has my line manager, I work the 40 hour weeks but in contract just 2 days on the contract are guaranteed to be offered as available

Hello did you have a contractual notice period you were entitled to on termination?

Customer: replied 1 year ago.
Hi, no I don't think so. Contract is with the agency and I think it is that they can finish any time
Customer: replied 1 year ago.
the gross misconduct idea is way off and I think they have just been exploitative. There are lots of similar jobs which are permanent, and the organisation is one where they say they are fair
is my contract zero hours if it says the work guaranteed is 2 days a week (I always worked 5, sometimes short notice on weekends or evenings)?
Customer: replied 1 year ago.
I would have chosen a permanent contract but they always said there were budget reasons

Thank you. The issue here is going to be the fact that you are working either as an agency worker or as a contractor, basically not an employee. Only employees will have protection against unfair dismissal, which means that as someone who is not an employee you will not be protected against that. What this means is that the employer is free to terminate your employment at any time and more or less for any reason. They cannot use any discriminatory reasons for this, such as anything linked to your gender, age, race, religion, a disability, etc but in any other case they can dismiss. They will also not be required to justify their decision or follow a fair procedure. Saying that, if your contract contained a clause with a notice period due on termination then you would be due that, unless the dismissal is for gross misconduct. This is what they have used here but they have not given you the chance to defend yourself or try to show that there was no gross misconduct. So whilst you will not be able to challenge a dismissal itself, you could challenge the severity of the reasons used and at least get any notice period you may be due.

This is your basic legal position. I have more detailed advice for you in terms of the steps you need to follow should you decide to challenge them over any notice period you should be 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

Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 1 year ago.
thank you we will rate and ask some more if that's ok
Customer: replied 1 year ago.
i don't think I'm an independent contractor, I am just employed through an agency. I have read that I can claim unfair dismissal if I have worked there over 2 years?
Customer: replied 1 year ago.
2. Is there any reasons why I should or should not have been on this contract for 3 years instead of being permanent with rights of an employee? There are hundreds of people employed in the same place, lots in similar position who are employees

If you re an agency worker you are not protected against unfair dismissal. Also if you are working as a contractor through an agency, then again you cannot claim unfair dismissal. The contact you were on is not something that is determined by law, it is what you are offered and what you have accepted. So on the assumption that you had continued working under these terms you would be bound by them, even if others were working under different contracts.

Customer: replied 1 year ago.
thanks, ***** ***** contract says that 2 days a week is the guaranteed work, is that what is the zero hours, or something different? I kept on the contract as it was all that they kept offering, though there were jobs coming up and no suggestions to apply. It is a public organisation that claims to be against zero hours and all that. I can't pay my rent now without any notice and have not even had anything in writing. I am writing to them and will ask if they would give the dismissal in writing, and I am also going to make a FOI request to ask for personnel file and any other relevant documents. I think my contract might have 1 week notice needed by either the agency or the client, but I am not sure. It is 20 pages long the contract, all for a short-term only 2 days work guaranteed
Customer: replied 1 year ago.
I asked re the repeated contract in case there was reasons that p[laces shouldn't be employing people on these insecure contracts when there is no obvious business reason and it is only useful for them to save money (it's a huge place and most are employed with all the benefits such as pension - I am as qualified and good as the people working in the same roles but as employees)

Zero hours has no guaranteed hours, so you may not have bee on a zero hours co tract but at the same time that does not give you additional rights here - it is not because of being on a zero hours contract that you cannot challenge it, that is due to your employment status either as an agency worker or a contractor. So in the circumstances all you can go after them for them is potentially the notice period due

Customer: replied 1 year ago.
I don't know what to do in case
1. they offer me the position back until the end of the contract (December was last date given verbally - I usually only know a few days in advance each time they have said 'you are being extended')
2. a line manager has said they will give me a reference, but he might change that once I make the FOIThe person who complained in an email (also sent to me, talking about me), used to work next to the person whose name was still on the system for talking to e.g. Microsoft. She has said this is horrifying (it was her departments role to make sure the names are ***** ***** date). On the day I was told by phone I was dismissed for this, the manager who called me sent an email saying that to everyone I was being dismissed as I didn't show enough care and attention. This is because the woman who complained has wrote that she had already given me a 'stern look' and made it clear that she was not happy to receive an email from microsoft saying that they had been in touch with '....' (previous person's name). I had been told after this 'mistake' on my part, by one manager over the phone, that I needed to apologise. I did this in an email, saying how sorry I was for the oversight in not immediately raising the issue that a previous employee was still the placeholder name
Customer: replied 1 year ago.
but the next day a different manager called to say I was being dismissed. I was already on a holiday I was forced to take (they tell me when I can work etc on this contract)

There is no right or wrong solution - it is what works best for you - you may need a reference for future work and that may be more important than trying to make FOI requests which may not help you. I would say go for a reference and some notice period if you can but if they are willing to allow you to work until Dec - then at least it will bring you some more income in the meantime

I am going offline now so may not be able to answer any more follow up questions at this time, thank you

Customer: replied 1 year ago.
I suppose I am asking around the law. I realise that there might not be legally then anything for unfair dismissal. But it's a public body where they campaign as a fair and great employer. It's not a good or fair way to treat someone after 3 years and having them on bad contracts is also bad. I will make a FOI and wait for now in terms of contacting anyone higher up in the organisation. Thanks for your help

You are welcome...just remember that what is fair is often a moral argument rather than a legal one and there is a distinct difference between the two. Best of luck

Customer: replied 1 year ago.
thank you, ***** ***** am really sad about what they did and how they did it, and stressed. However, they are very public body and maybe there can be something better, because I think they have just exploited me, and I just think about it more now, why is the woman complaining (who tells people her personal problems all the time, and must assume I have none, because I never complained a single second at work) a permanent employee, when I am at same level and just been exploited as I have anxiety and am too shy to ever ask for more or do well at interviews, thanks you again
Customer: replied 1 year ago.
it's my brother telling me to do the FOI and so on, he is someone to help, as I have no-one else, thanks

no problem, all the best for now