Sick leave, redundancy, dismissal (sacking), disciplinaries and pay

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AlexanderHam
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I work as a volunteer employment law adviser in a London law centre, while I'm completing my degree. I advise clients on matters of unfair dismissal, breach of contract, redundancy, disciplinaries, sick leave and occasionally discrimination (racial discrimination, sex discrimination, sexual harassment, etc etc)

I thought I should open up a thread to see whether anyone has had any of these issues. I think this is a good forum to discuss these matters (and of course can refer you to an appropriate service if necessary) as it allows other people with similar issues to get accurate information (there are many myths, urban legends and untrue information swirling around the law as it relates to employment).

So... if you have any of these issues, feel free to speak up!
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username1539513
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Thankfully haven't encountered any of these issues in my working life as of yet but I'll keep this thread in mind for future reference
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Reality Check
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(Original post by AlexanderHam)
I work as a volunteer employment law adviser in a London law centre, while I'm completing my degree. I advise clients on matters of unfair dismissal, breach of contract, redundancy, disciplinaries, sick leave and occasionally discrimination (racial discrimination, sex discrimination, sexual harassment, etc etc)

I thought I should open up a thread to see whether anyone has had any of these issues. I think this is a good forum to discuss these matters (and of course can refer you to an appropriate service if necessary) as it allows other people with similar issues to get accurate information (there are many myths, urban legends and untrue information swirling around the law as it relates to employment).

So... if you have any of these issues, feel free to speak up!
Have you found that the gig economy has thrown up a lot of uncertainty regarding employment status with the clients whom you see? I imagine that in the head of the man on the Clapham Omnibus, the exact difference between 'self-employed', 'worker' and 'employee' is not entirely clear.
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AlexanderHam
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(Original post by Reality Check)
Have you found that the gig economy has thrown up a lot of uncertainty regarding employment status with the clients whom you see? I imagine that in the head of the man on the Clapham Omnibus, the exact difference between 'self-employed', 'worker' and 'employee' is not entirely clear.
Excellent question. We've had quite a lot of cases where the client's employer has asserted that they are self-employed where the law would almost certainly determine the relationship as one of employment.

The difference between employee and worker is trickier than self-employed and worker/employee. The courts will look past the "label" (self-employed or employee, etc) and assess the relationship based on the actual material factors rather than what is asserted to be the status in the contract, but it doesn't stop many companies from making a universal assertion of self-employed status for their employees.

For an employee, there are two elements that will generally be considered to be fairly conclusive as to status. First, mutuality of obligation; that the employer has an obligation to "provide work" (in other words, they have a set number of hours each week; if their contract provides for a 40-hour work week, this is a bilateral obligation, binding the employer as much as the employee). Is the 'employee' free to turn down work? Is the employer obliged to provide work? etc etc

Second is that they are providing a "personal service"; if they have a "right of substitution" (in other words, if they don't want to turn up to work they can send someone in their place) then they will almost certainly be considered self-employed. But if there is that mutuality of obligation, if the service they provide is personal in nature, and perhaps if the employer exercises disciplinary control over the employee's conduct, they will be considered to be employed.

If there is no mutuality of obligation (zero-hours contracts, for example) but they must still provide personal service, they're probably a worker. Of course this is all very fact sensitive; every case will really turn on the facts (and there is a statutory test for determining worker status as the worker status has come down to us through EU directives; that's why it seems to sit slightly oddly between self-employed and employed statuses, it is slotted into an already-existing system of employment law)

We did have a pretty awful case where there was assertion of self-employed status by the employer; there was no mutuality of obligation in the sense of guaranteed hours, but they weren't really allowed to turn down work. There was no right of substitution. But the bit that I found quite nauseating was that these guys were clearly earning under minimum wage (if we could establish they were workers or employees, they would be entitled to minimum wage, paid holidays etc) and they were required to buy their uniforms and rent the scanner they used to scan the delivery items. The worst was that if they took a sick day, they were "fined" £50. We're still litigating the case now, but there is little doubt they were workers but they were also labouring under some of the worst terms and conditions I've ever seen (and I've dealt with a lot of "gig economy" workers; delivery drivers and suchlike)
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Reality Check
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(Original post by AlexanderHam)
Excellent question. We've had quite a lot of cases where the client's employer has asserted that they are self-employed where the law would almost certainly determine the relationship as one of employment.

The difference between employee and worker is trickier than self-employed and worker/employee. The courts will look past the "label" (self-employed or employee, etc) and assess the relationship based on the actual material factors rather than what is asserted to be the status in the contract, but it doesn't stop many companies from making a universal assertion of self-employed status for their employees.

For an employee, there are two elements that will generally be considered to be fairly conclusive as to status. First, mutuality of obligation; that the employer has an obligation to "provide work" (in other words, they have a set number of hours each week; if their contract provides for a 40-hour work week, this is a bilateral obligation, binding the employer as much as the employee). Is the 'employee' free to turn down work? Is the employer obliged to provide work? etc etc

Second is that they are providing a "personal service"; if they have a "right of substitution" (in other words, if they don't want to turn up to work they can send someone in their place) then they will almost certainly be considered self-employed. But if there is that mutuality of obligation, if the service they provide is personal in nature, and perhaps if the employer exercises disciplinary control over the employee's conduct, they will be considered to be employed.

If there is no mutuality of obligation (zero-hours contracts, for example) but they must still provide personal service, they're probably a worker. Of course this is all very fact sensitive; every case will really turn on the facts (and there is a statutory test for determining worker status as the worker status has come down to us through EU directives; that's why it seems to sit slightly oddly between self-employed and employed statuses, it is slotted into an already-existing system of employment law)

We did have a pretty awful case where there was assertion of self-employed status by the employer; there was no mutuality of obligation in the sense of guaranteed hours, but they weren't really allowed to turn down work. There was no right of substitution. But the bit that I found quite nauseating was that these guys were clearly earning under minimum wage (if we could establish they were workers or employees, they would be entitled to minimum wage, paid holidays etc) and they were required to buy their uniforms and rent the scanner they used to scan the delivery items. The worst was that if they took a sick day, they were "fined" £50. We're still litigating the case now, but there is little doubt they were workers but they were also labouring under some of the worst terms and conditions I've ever seen (and I've dealt with a lot of "gig economy" workers; delivery drivers and suchlike)
This sounds horribly familiar. An employee to all intents and purposes. I know that HMRC have some fairly clear guidance on this, but I wonder about the number of companies who stick very closely to the letter, rather than the spirit of it. I find it incredible that anyone should attempt to claim that an employee who is not free to chose their hours or employer, has their work directed for them by that employer, takes no financial risk but is required by their employer to use specific items to complete the job at his direction and discretion is anything other than an employee. The notion of self-employment in these cases is ludicrous. Deliveroo, Excel, Addison Lee and of course Uber - they've got it coming, frankly. The courts seem ready and willing to find that an employer-employee relationship exists where the employer claims otherwise.
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AlexanderHam
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(Original post by Reality Check)
This sounds horribly familiar. An employee to all intents and purposes. I know that HMRC have some fairly clear guidance on this, but I wonder about the number of companies who stick very closely to the letter, rather than the spirit of it. I find it incredible that anyone should attempt to claim that an employee who is not free to chose their hours or employer, has their work directed for them by that employer, takes no financial risk but is required by their employer to use specific items to complete the job at his direction and discretion is anything other than an employee. The notion of self-employment in these cases is ludicrous. Deliveroo, Excel, Addison Lee and of course Uber - they've got it coming, frankly. The courts seem ready and willing to find that an employer-employee relationship exists where the employer claims otherwise.
I've found HMRC to be rubbish in this area, particularly as they often provide flawed information to enquirers (such as telling one of our clients she wasn't entitled to minimum wage) and have no enforcement powers of their own as far as the actual conduct of employment relationships. To the extent they have a role in compelling employers to pay NI contributions for individuals who are clearly workers, despite the employer's assertion of self-employed status, HMRC isn't particularly pro-active.

I completely agree re Deliveroo, Uber, etc. If an employer asserts self-employed status and, as a result, pays below minimum wage, the remedy is to bring an unlawful deduction of wages claim in the Employment Tribunal. However, successive governments have made the time limits and claim caps so restrictive that there is little to deter an employer from "trying their luck". One has to bring an unlawful deduction of wages claim within three months of the final payment, and there is a cap of a maximum of two years backpay recovery. It used to be six years (in line with ordinary limitation periods) however businesses informed the Cameron government that they calculated they had a £900 million liability for such claims, and the government could reduce that by three-quarters by reducing the cap to two-years backpay. The government duly enacted the cap, which was essentially a cash gift to business. It was completely shameless.

My view is, if you can't pay minimum wage you can't afford to be in business. If you do underpay your workers in a particularly aggravated or egregious manner, then there should be provision for some kind of aggravated penalty, not merely paying what you should have paid anyway. Otherwise there is little in the way of deterrence and much in the way of inducements for employers to try it on
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username2769500
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No I have not.
This surely doesn't happen that often? Everyone's mostly fair these days!
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Reality Check
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(Original post by AlexanderHam)
My view is, if you can't pay minimum wage you can't afford to be in business. If you do underpay your workers in a particularly aggravated or egregious manner, then there should be provision for some kind of aggravated penalty, not merely paying what you should have paid anyway. Otherwise there is little in the way of deterrence and much in the way of inducements for employers to try it on
Totally agree. Referring again to HMRC, the concept of a penalty for tax avoidance/evasion being calculated according to culpability, ranging from the relatively innocuous 'lack of reasonable care' to the much more serious 'deliberate and concealed' is well established and, from what I read, a relatively effective deterrent. The current system, weighted so heavily as it is towards the interests of the employer, does nothing to prevent them 'trying it on' - if they get away with it, Bingo: no holiday pay or employment rights for you, sonny-jim.
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AlexanderHam
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(Original post by Anfanny)
No I have not.
This surely doesn't happen that often? Everyone's mostly fair these days!
It happens all the time. We regularly see employers who fail to pay minimum wage or paid holidays, or discriminate against their employees or dismiss them for whistleblowing.

It's true that we're not in the 19th century anymore, and most of the larger 'bluechip' employers (like, say, a Marks & Spencer or BT) will abide by the basic obligations to pay minimum wage, provide maternity leave, etc. But there are many employers (often smaller employers) who do not meet their obligations, and in the case of the larger employees we see other types of claims (discrimination, whistleblowing, unfair dismissal)
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