Long term casual worker and sending of P45

[resources]

My employer has summary dismissed me because underperformance even though poor performance and bad quality work are acts of misconduct and not acts of gross misconduct which according to the disciplinary procedure warrant a summary dismissal. In fact my employer has skipped the two first steps of the disciplinary procedure. Furthermore he has not given me the right to appeal which according to the disciplinary procedure applies also to summary dismissal

 

I have difficulties to understand how an employer can chose either to dismiss a worker using his disciplinary procedure or not to use it to dismiss him because this negates the purpose of the disciplinary procedure. Moreover in the document that my employer made me signed it is stated that it is the disciplinary procedure of the ‘casual workers’

[Emmzzi]

Explained in 8 posts already

 

But, do go and pay a lawyer to tell you the same thing, if you wish.

[steampowered]

Your claim seems to essentially boil down to the employer's failure to follow the disciplinary procedure.

 

Unfortunately you cannot generally make a claim for this, because with less than a month's service the employer is allowed to dismiss you at any time for any reason anyway (save for things such as race discrimination). That is just the legal position - it is what it is.

 

In order to make a breach of contract claim you'd have to prove that the employer gave you a contractual promise to follow the procedure. This would be very difficult to prove, since disciplinary procedures are almost always non-contractual. The fact you were asked to sign it helps but I don't think it is enough.

[resources]

The statutory grievance and disciplinary/dismissal procedures does not apply to casual workers. However the disciplinary procedure that my employer makes the casual workers sign is not a grievance and disciplinary procedure because it has nothing to do with grievance because it allows only the employer to discipline a casual worker but it does not allow the casual worker to make a grievance against the employer. Hence it is a disciplinary procedure but it is not at the same time a grievance procedure.

 

Therefore it could be considered as a contractual disciplinary procedure and not a statutory disciplinary procedure. Contractual clauses apply at the beginning of the contract i.e. at the beginning of the employment without the need of having worked for one month or two years . It is for this reason that I have not yet understood why even though he makes the casual works sign a disciplinary procedure which is called ‘casual workers disciplinary procedure’ my employer could select to dismiss a casual worker without using this disciplinary procedure because the difference between using and not using this disciplinary procedure is very big because if he uses it the casual worker is entitled to several meetings and several appeals.

 

However if he did not use this disciplinary procedure the casual worker has right to no meetings and no appeals.

Edited September 18, 2016 by honeybee13
Paras.

[steampowered]

I totally see the logic of where you are coming from. You are basically saying that the employer made you sign a disciplinary procedure, so they should be held to it.

 

I've done a bit more digging and it turns out that the question is a bit more complicated than I might have thought. It turns out the question recently split the Supreme Court 3-2. Unfortunately it seems the majority of the court was not in your favour so the law seems to be that you can't bring a separate breach of contract claim for breach of disciplinary procedures even if they are an express term of your employment contract.

 

You can read the decision here: http://www.bailii.org/uk/cases/UKSC/2011/58.html. I've extracted the relevant bit for you below.

 

There is one further point. During the argument there was some discussion of whether the provisions for disciplinary hearings were express terms of Mr Johnson's contract and what the consequences would be if they were. No such express terms were pleaded and Mr Faulks, who appeared for Mr Johnson, was not enthusiastic about doing so. Nevertheless, it may be useful to examine the matter in a little more detail.

 

61. Section 1(1) of the 1996 Act provides that upon commencing employment, an employee shall be provided with 'a written statement of particulars of employment'. This includes, but is not limited to, the 'terms and conditions' of employment concerning various matters, including 'the length of notice which the employee is obliged to give and entitled to receive to terminate his contract of employment' (section 1(4)(e)). Section 3(1) then provides that a statement under section 1 shall include a 'note...specifying any disciplinary rules applicable to the employee or referring the employee to the provisions of a document specifying such rules which is reasonably accessible to the employee'.

 

62. Consistently with these provisions, Mr Johnson was written a letter of engagement which stated his salary and summarised the terms and conditions of his employment, including the notice period. Apart from the statement that in the event of gross misconduct, the company could terminate his employment without notice, it made no reference to disciplinary matters. It was however accompanied by the employee handbook, which the letter of engagement said 'outlines all the terms and conditions of employment'. This was divided into various sections, the first being headed 'Employment terms and conditions'. These made no reference to the disciplinary procedure, which appeared in a subsequent section under the heading 'Other procedures'. There one could find the various stages of the disciplinary procedure: formal verbal warning, written warning, final written warning, culminating in dismissal, as well as the separate procedure for summary dismissal in cases of serious misconduct.

 

63. So did the disciplinary procedures constitute express terms of the contract of employment? Perhaps for some purposes they did. But the employee handbook has to be construed against the relevant background and the background which fairly looms over the disciplinary procedure is Part X of the 1996 Act. The whole disciplinary procedure is designed to ensure that an employee is not unfairly dismissed. So the question is whether the provisions about disciplinary procedure which (to use a neutral phrase) applied to Mr Johnson's employment were intended to operate within the scope of the law of unfair dismissal or whether they were intended also to be actionable at common law, giving rise to claims for damages in the ordinary courts.

 

64. Section 199(1) of the Trade Union and Labour Relations (Consolidation) Act 1992 gives Acas power to issue 'Codes of Practice containing such practical guidance as it thinks fit for the purpose of promoting the improvement of industrial relations'. By section 207, a failure to comply with any provision of a Code is not in itself actionable but in any proceedings before an industrial tribunal 'any provision of the Code which appears…relevant to any question arising in the proceedings shall be taken into account in determining that question'. In 1977 Acas issued a Code of Practice entitled 'Disciplinary Practice and Procedures in Employment'. It explained why it was important to have disciplinary rules and procedures which were in writing and readily available to management and employees. It said in paragraph 4:

'The importance of disciplinary rules and procedures has also been recognised by the law relating to dismissals, since the grounds for dismissal and the way in which the dismissal has been handled can be challenged before an industrial tribunal.'

 

65. In paragraph 10 it listed what disciplinary procedures should include. The Unisys procedures have clearly been framed with regard to the Code of Practice.

 

66. My Lords, given this background to the disciplinary procedures, I find it impossible to believe that Parliament, when it provided in section 3(1) of the 1996 Act that the statement of particulars of employment was to contain a note of any applicable disciplinary rules, or the parties themselves, intended that the inclusion of those rules should give rise to a common law action in damages which would create the means of circumventing the restrictions and limits which Parliament had imposed on compensation for unfair dismissal. The whole of the reasoning which led me to the conclusion that the courts should not imply a term which has this result also in my opinion supports the view that the disciplinary procedures do not do so either. It is I suppose possible that they may have contractual effect in determining whether the employer can dismiss summarily in the sense of not having to give four weeks' notice or payment in lieu. But I do not think that they can have been intended to qualify the employer's common law power to dismiss without cause on giving such notice, or to create contractual duties which are independently actionable."

[resources]

The case you put forward does not apply to me because it concerns employees and not workers and statute law about disciplinary procedure applies only to employees and not to workers. Moreover this case concerns unfair dismissal but I cannot claim for unfair dismissal because I was a worker and not an employee.

 

In this case the court has considered that the fact that the claimant can already claim under statute means that he cannot claim also under contract i.e he cannot have a second bite of the cherry. However workers cannot claim under statute so there is no reason why they would not be able to claim under contract. Otherwise this would mean that my employer can comply with the disciplinary procedure that he made me signed only if he wants and that this disciplinary procedure does not have any value

 

Not compliance with ACAS rules on Grievance and Disciplinary procedure are taken into account only if the dismissal was unfair on the substance and in this case there will be an uplift of 25% in any damage awarded for unfair dismissal if these rules of ACAS has not been complied with. And the claimant cannot bring a separate claim for breach of contract to ask for more damage if his employer has not complied with these ACAS rules. However my case is different because I do not claim for dismissal and I was a worker and not an employee so these ACAS rule do not apply to me.

 

If an employer not complying with his statutory duties on the grievance and complaint procedure he will be punished by having to pay an additional 25% uplift in case of unfair dismissal. However my case is different because the disciplinary procedure that my employer made me sign is purely contractual and has nothing to do with statute so the question is not whether or not I can bring a separate claim for breach of contract in case my employer does not comply with this disciplinary procedure because anyway I cannot bring another claim under statute.

 

Concerning employees an employer has to comply with his statutory duties concerning disciplinary procedure and concerning worker he has to comply with his contractual duties about disciplinary procedure in case he has made sign the worker a disciplinary procedure. In my case my employer do not have any statutory duties to comply with a disciplinary procedure but this does not mean that he does not any contractual duties to comply with a disciplinary procedure if he has made the worker sign one

[steampowered]

Right. So you are saying you were a contractor rather than an employee?

 

The general rule with contractors is that you can be dismissed at any time, subject to any applicable notice periods, so I still think you will find it extremely difficult to prove that the employer's compliance with the disciplinary procedure was a term of your contract.

[resources]

I was a temporary worker and not an employee because I was employed only the time of a project. I was not a contractor in the meaning of being self-employed.

 

According to the definition of a worker workers are employed under a contract of employment and concerning the question of whether or not the disciplinary procedure that my employer made me sign and which applies only to casual workers form part of this contract of employment my reply would be why not

[becky2585]

Unless the procedure expressly states it is contractual then you're entitled to zero notice. Signed or not, it doesn't matter - employees often sign to confirm receipt of a staff handbook but it doesn't make it contractual.

 

At least three experienced professionals on here have told you, in several different ways, why you don't have a claim. We aren't here to tell you what you want to hear and your passion is noted. However the circumstances you describe simply aren't legally actionable.

 

I'd concentrate your passionate efforts on finding another job.

[resources]

I think that the disciplinary procedure that my employer has made me signed is contractual for the following reasons:

 

1. As long as the disciplinary procedure makes reference to the termination of my employment i.e. to the termination of my contract of employment why it would not be contractual?

 

2. Its title is called

 

“Terms and Conditions of Contract with Casual workers: Disciplinary Rules and Procedures”

 

3. At the end it is stated above my signature, the date and my printed name

 

“I accept and agree to the above terms”

 

4. According to contract law a statement is either a contractual term or a representation. It is difficult to believe that this disciplinary procedure is a statement

[ericsbrother]

so what? You may think this is some golden bullet that will make your ex employer pay you money that is not owed but that means nothing other than as applied to the Employment Acts and as already explained, they do not protect you as you havent been employed long enough. If you are very rich or very poor you may try your luck at court but the reality is that for most people it will be a fruitless and costly exercise because the employer will ask for their costs as your case has no prospect of success.

Do you really believe that you will get anywhere are are you just pettifogging for the sake of it? You have been told that statute law has precedent over common law tort so why do you think that your case is different?

[Emmzzi]

It's worked before, which may be why resources is so unwilling to let this one go

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?454165-HB-Overpayment

[resources]

1.

‘ericsbrother’ says

 

“Do you really believe that you will get anywhere are you just pettifogging for the sake of it? You have been told that statute law has precedent over common law tort so why do you think that your case is different?”

 

This means that an employer cannot contract out of statute for example if statute says that he should have a proper grievance and disciplinary procedure for employees he cannot make sign a contract to an employee with a clause which is contrary to this statute obligation. However in my case there could not be a contract which overcomes statute because statute law on grievance and disciplinary procedure does not apply because I was a worker and not an employee.

 

Parties are free to enclose the clauses in their contract that they want as long as these clauses satisfy the law on unfair terms. Hence the disciplinary procedure that my employer made me sign is valid unless it contain unfair terms.

 

2.

‘Emmzzi’ says

 

“It's worked before, which may be why resources is so unwilling to let this one go

 

http://www.consumeractiongroup.co.uk...HB-Overpayment”

 

However this previous case is entirely different and has nothing to do with my current case.

[steampowered]

I think you've got your answer now resources.

 

My personal opinion is still that, although the facts that you were asked to sign the disciplinary procedure and it is labelled 'Terms and Conditions' are helpful, I don't think it is enough to make compliance with the disciplinary procedure part of your employment contract. I think you would need something more than that, such as the employer actually making an express written promise that it will not dismiss you without complying with the procedure, before you can override the usual legal position which is that employees with less than a month's service may be dismissed at any time for any reason without notice.

 

Most of the other contributors to this thread, who include some very experienced and knowledgeable people, seem to take a similar view.

 

I suppose we may need to agree to disagree at this point. The decision is yours as to whether you want to let this one go, or whether you wish to proceed with a 'letter before action' and then potentially a county court claim or Employment Tribunal claim. Please do let us know how you get on either way as it helps others who may be in a similar position in future.

[resources]

I think that there are two main issues:

 

The first issue is whether or not the fact that my employer has removed me from the project without going through the disciplinary procedure for casual workers that he made me sign gives me right to damages for breach of contract? It is important to note that my case is a case of wrongful dismissal and not of unfair dismissal so it is the ‘Gunton’ case which applies and not the ‘Johnson exclusion’

 

The second issue is can I claim damages for breach of contract for the early termination of my contract of employment ? It is a fixed term contract because it ends after the completion of a specific project and because I was a ‘specialist for a project’ and unless there is nothing about terminating the contract earliy the employer will be in breach of contract. And in my case the clause which gives the right to my employer to end the contract early is the disciplinary procedure that he made me sign.

 

I found the following three passages in the Internet which confirm that I am maybe right:

 

“Employers may be in breach of contract if they wish to end the contract and there is no provision to so in the contract of employment”

 

“However, be warned. If the contract itself does not allow for early termination, unless the employee has committed an act of gross misconduct, the employee may be entitled to be paid what they would have earned during the remainder of the contract term.”

 

"Therefore early termination of a fixed-term contract will be a breach of contract, unless the contract contains an early termination clause allowing either party to give notice"

[steampowered]

I agree that employers who terminate a fixed term contract early can be liable to pay out if they terminate the contract early without cause.

 

Were you on a fixed term contract though? It sounds like you don't have any paperwork. Simply being allocated to work on a particular project won't be enough. To be on a fixed term contract you would need to have a very clear promise from the employer that you would be employed for the entire duration of the project.

[resources]

I would like to know if the fact that I have been through a probationary period means that as soon as this period has ended I was considered as being accepted for the entire project so I was in a fixed-term contract because I was accepted for the full project.

 

I would like to know also if the fact that I was maybe a "a specialist employee for a project" because I have special knowledge means that I was in fixed-term contract even though I was considered as being a casual worker in a project which lasted less than six months

[steampowered]

I would like to know if the fact that I have been through a probationary period means that as soon as this period has ended I was considered as being accepted for the entire project so I was in a fixed-term contract because I was accepted for the full project.

Unless the employer told you in writing that it would employ you for the entire project, I think the answer to this question is no. The standard rules on notice are as advised previously (i.e. no notice to required to dismiss an employee or worker in the first month), you would need a very clear written statement from the employer to have much chance of overriding the standard rules.

 

I would like to know also if the fact that I was maybe a "a specialist employee for a project" because I have special knowledge means that I was in fixed-term contract even though I was considered as being a casual worker in a project which lasted less than six months

I don't think the fact you were a specialist employee makes any difference.

[ericsbrother]

and even then normal employemtn law prevails unless the contract says otherwise. If you were an apprentice the law is different as they cant give you the boot apart from under very limited conditions but this is clearly a zero hours contract that has a fixed termination date and that is not the same as a contract for a specific task to be completed within an agreed time such as a single project.

The OP is his own worst enemy, what with his studeies, arguments over tenancies etc, all of which are based on fallacy. He also keeps moving the goalposts with now saying "maybe" he was a specialist. No he wasnt, why would he be on a zero hours contract if that was the case, they would be paying a consultancy fee if that was the case and thus be self employed.

I agree that employers who terminate a fixed term contract early can be liable to pay out if they terminate the contract early without cause.

 

Were you on a fixed term contract though? It sounds like you don't have any paperwork. Simply being allocated to work on a particular project won't be enough. To be on a fixed term contract you would need to have a very clear promise from the employer that you would be employed for the entire duration of the project.

[resources]

‘steampowered’ says

 

“I don't think the fact you were a specialist employee makes any difference”

 

However the law says

 

“They may be a fixed-term employee if they’re:

• a seasonal or casual employee taken on for up to 6 months during a peak period

• a specialist employee for a project

• covering for maternity leave”

 

‘ericsbrother’ says

 

“but this is clearly a zero hours contract that has a fixed termination date and that is not the same as a contract for a specific task to be completed within an agreed time such as a single project”

 

However my contract did not have a fixed termination date because we did not know when the project will end. A document was given to us where it was made reference to the end of a month but without a precise date. The issue is how my employer could have put such a contract in writing. He should have said that the end would have been the end of the project but without being able to put any end date forward and this would have been equivalent to an open ended contract what is in fact a permanent contract

 

'ericsbrother' says

 

“He also keeps moving the goalposts with now saying "maybe" he was a specialist. No he wasnt, why would he be on a zero hours contract if that was the case, they would be paying a consultancy fee if that was the case and thus be self employed.”

 

This is a mistake because we do not need to be a self-employed consultant to be a ‘specialist’ because self-employed could not be on a fixed-term contract because they are not employed by the company.

 

I think it will be good to clarify this issue of “• a specialist employee for a project” and to do so it is important to know which legislation concerns the following:

 

“They may be a fixed-term employee if they’re:

• a seasonal or casual employee taken on for up to 6 months during a peak period

• a specialist employee for a project

• covering for maternity leave”

[ericsbrother]

all irrelevant to your case. You are just making noise for the sake of it

[steampowered]

The operative word is 'may' be a fixed term employee.

 

To have a fixed term employment contract, there would need to be a clearly agreed fixed term which was accepted as a fixed term by both parties. You would need the fixed term to be clearly set out in writing.

[resources]

1.

If this was the case what needs could have the maker of the law to add to the law the following piece of law

 

“They may be a fixed-term employee if they’re:

• a seasonal or casual employee taken on for up to 6 months during a peak period

• a specialist employee for a project

• covering for maternity leave"

 

It seems to me that the purpose of this additional piece of law is to prevent that employers use zero hours contracts like fixed-term contracts but without giving the same right to the workers because the difference could be important because with a fixed-term contract an employer cannot remove someone from a project without a good reason

 

We can say that a specialist employee working on a project who is on on a contract that his employer called a 'zero hour contract' can refuse work but if in reality if he does this too much he will be removed from the project.

 

2.

This additional piece of law comes from the following government website

 

https://www.gov.uk/fixed-term-contracts/what-counts-as-a-fixedterm-contract

 

However I have difficulties to find the legislation where this comes from and I would like to know if someone can help.

 

I found out that the section 1 of the “The Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002” gives a definition of a fixed-term contract but this part

 

“They may be a fixed-term employee if they’re:

• a seasonal or casual employee taken on for up to 6 months during a peak period

• a specialist employee for a project

• covering for maternity leave”

 

Is not in this piece of legislation so it could have been added later but the issue is to know in which legislation. I it good to find out where this additional law come from to understand better the situation

[Emmzzi]

are you actually trying to take action now, or just having an academic debate?

 

if you are going to do something - what is it?

[steampowered]

The legal definition is here. http://www.legislation.gov.uk/uksi/2002/2034/regulation/1/made. Read the definition of 'fixed term contract' which is self-explanatory.

 

The description given on the .gov.uk website is misleading. Being a specialist employee has absolutely nothing to do with having a fixed term contract. What the .gov.uk website is I think getting at, is saying that employers will often use fixed term employment contracts where they want to hire someone for one project.