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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 68063
Experience:  Qualified Solicitor
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I work for a German company, based in London. The company

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Hello, I'm Diana and I work for a German company, based in London. The company has only 2 months of activity each year, during the Winter Season. Even though I work for them for 5 years now, and I have grown within the company, and for the past 3 years, I'm the HR Manager and Staff Manager over the 220 employees. Having a seasonal activity, we don't have a signed employment contract, but an agreement. My situation is that the owner became a bully, haven't kept his parts of understandings and now he threatened me to dismiss me, without a ground. I want to know what rights I have in this situation. Thank you
JA: Have you discussed the employment contract issue with a manager or HR? Or with a lawyer?
Customer: I am the HR and the staff manager
JA: What is your employment status? Are you an employee, freelancer, consultant or contractor? Do you belong to a union?
Customer: I don't belong to any union and I don't know to describe my status I live part of the year in my country and I only come to UK for the winter season when the company has activity
JA: Anything else you want the Lawyer to know before I connect you?
Customer: no

Hello, I’m Ben, a UK lawyer and will be dealing with your case today. I may also need to ask some questions to determine the legal position.

Is the return to work each year guaranteed?

Customer: replied 7 months ago.
Hello Ben, depends, we discuss each spring/summer how we organise the event for next winter Until now, I have been invited every year, yes

But it is still subject to an invitation and not a guarantee and potentially they could just not invite you?

Customer: replied 7 months ago.
It is not a conventional business and it doesn't have a convenient way of handling these aspects. We keep in touch all over the year, and the moment we finish the winter season we discuss when we meet to plan the next one

Ok thanks. The reason for this is that your rights will be determined by your length of service, with the key requirement that you have at least 2 years’ continuous service. Having that protects you from unfair dismissal and means the employer is required to show there was a fair reason for the dismissal and also follow a fair procedure. The most important term in this is the word ‘continuous’. So if your employment terminated each time you went off at the end of the short working period and then were re-engaged again later in the year, then you will not have continuous service and at the time of termination you would only have a short period of time as service behind you, meaning they can dismiss you quite easily.

On the other hand, if you were practically guaranteed to return and it was just the nature of the job that you go on this ‘break’ but had a guaranteed job to come back to and this was all part of the nature of the employment, it may potentially be possible to argue that the employment was continuous. However, a 10-month break is rather long and I doubt a tribunal would find the employment was continuous. Had it been the other way round, where you work for 10 months and have a break for 2, then return again and so on, you would have had a better argument but in your case the chances are somewhat slim, meaning a dismissal can happen quite easily.

Does this answer your query?

Customer: replied 7 months ago.
Thank you for your answer, but the work is not only for 2 months. Maybe I didn't describe it well enough.
I work form June each year until November to recruit and train 250 people and then I bring them to London to work for 2 months. I finish my paperwork in January, I have free time until June, but it's not really free time, cause I work on the project for the next year, but just to say, is more relaxed.
I am paid from June to January, but I am paid at the end of January. So I work on my own resources, I come to UK with the people and at the end of the season I receive my payment.Does it make sense? I did this for the past 3 years in a row

So what actually happens in your 'free time' - is this just voluntary work you do or are you actually instructed to do work for them still and they control your activities in that respect?

Customer: replied 7 months ago.
In our free time, we just have a break...because here in London is a full time 2 months, every day 12 h/ day
Customer: replied 7 months ago.
All of us we have a break and after Easter we start discussing next season

Ok the same answer as originally stands, with the only difference that I would remove the ‘you have a slim chance of arguing this’ part. There is no specific period of time required for a break to become an official break in employment and each case depends on its own facts. This is not an easy area of law and it is actually something only an Employment Tribunal can determine. So all I can say is that you need 2 years continuous employment to have protection against a dismissal but for that you need to convince a tribunal that these breaks did not break the continuity of employment and that is where the main difficulty would come – you cannot prove it with certainty until you make an official claim, which you can only do after dismissal

Customer: replied 7 months ago.
Thank you Ben for your answer.
What I don't understand, is that even if I have now 8 months, of hard work and good results, I have no protection over a personal issue dismissal?
I don't find it very fair
I have a very important role inside the company, and I have measurable results and the fact that we came to a personal issue shouldn't let them dismiss me so easily, without any consequence

No, because this is how the law works over here:

If you have been continuously employed at you 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 the decision is not based on a reason which makes a dismissal automatically unfair. These include:

· Discrimination due to a protected characteristic (i.e. because of gender, race, religion, age, disability, sexual orientation, etc.)

· Taking, or trying to take, leave for family reasons including pregnancy, maternity/paternity leave, parental leave, adoption leave or leave for dependants

However, if the dismissal had nothing to do with any of the above exceptions, you would not be able to challenge it. In that case your only protection would be if you were dismissed in breach of contract. That would usually happen if you were not paid any contractual notice period due to you (unless you were dismissed for gross misconduct, where no notice would be due). If you did not have a written contract in place you would be entitled to the minimum statutory notice period of 1 week. The employer would either have to allow you to work that notice period and pay you as normal, or they instead have to pay you in lieu of notice, where you are paid for the equivalent of the notice pay but your employment is terminated immediately.

Does this clarify things a bit more for you?

Customer: replied 7 months ago.
it does, but still, I don't find it very fair
So basically I can't do anything
Customer: replied 7 months ago.
Thank you for your time

I appreciate it does not look fair but the law is the law regardless. At least I hope it explains your position so you know where you stand

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