Annual paid leave entitlement

[ericsbrother]

all your grievances laid out in one document. You can number them so he can respond to each of them.

Agree with the comments about his ignorance and also downright vindictiveness. Paying you over 12 months will actually damage his arguments and may well give rise to a claim agains him for not paying the minimum wage as he would be making you salaried staff and the hours would be those normally worked so the calculation of an hourly rate would drop that down by 14% . Clearly not thought that one through.

Dont feel sorry for him, it has always been within his powers to do things properly and to take advice. Most towns of any size have a local business forum where you can meet and chat with others about everything affecting your business. The more formal meetings are addressed by brought in speakers and all of this cost very little per head

[bloomingflower]

all your grievances laid out in one document. You can number them so he can respond to each of them.

Agree with the comments about his ignorance and also downright vindictiveness. Paying you over 12 months will actually damage his arguments and may well give rise to a claim agains him for not paying the minimum wage as he would be making you salaried staff and the hours would be those normally worked so the calculation of an hourly rate would drop that down by 14% . Clearly not thought that one through.

Dont feel sorry for him, it has always been within his powers to do things properly and to take advice. Most towns of any size have a local business forum where you can meet and chat with others about everything affecting your business. The more formal meetings are addressed by brought in speakers and all of this cost very little per head

 

 

Update;

 

As you might previously know my employer gave me 28 days from the 8th July 2017 to decide what I want to do. Whether to go to tribunal or not.

 

After our meeting on this same day I told him that I will be pursuing my holiday pay through a tribunal as I didn't agree with his proposals/ultimatums. His proposals were a way of him getting out of paying statutory annual leave.

 

However, he has now ended my contract with immediate effect.

 

I am now jobless.

 

I have spoken with another conciliator from ACAS this morning and she says she will ring him and give him one more chance to make an offer of settlement for the accrued holiday pay that he owes.

 

Otherwise she will issue the certificate by the end of this week so that I can file the claim to a tribunal.

 

Does anyone know for sure if I can also make a detriment claim. I have read on the CAB site that this is quite hard to prove.

 

Nevertheless, I am now without a job and I need to quickly think about how I am going to pay my rent and bills for now.

 

This is such a mess.

 

 

bf x

[sgtbush]

unfair dismissal or the like , im not that up to date with employment law but the way you have been treated is horrendus

[honeybee13]

Hello BF.

 

I'm sorry to hear that, how unfair. I expect the employment guys will be along later with advice for you. I'll send a couple of SOSs for you.

 

HB

[bloomingflower]

unfair dismissal or the like , im not that up to date with employment law but the way you have been treated is horrendus

 

Hello BF.

 

I'm sorry to hear that, how unfair. I expect the employment guys will be along later with advice for you. I'll send a couple of SOSs for you.

 

HB

 

Thank you sgtbush and HB. I appreciate that.

 

My employers horrendous treatment is an understatement. He has become quite nasty with his behaviour which in all honesty I have done absolutely nothing to warrant this level of vindictiveness.

 

I have always kept my correspondence with him with a sense of professionalism and politeness.

 

My only crime as it were was to ask him for statutory annual paid leave which I had already accrued.

 

I just wish the government or someone out there would do something about these unscrupulous employers

who don't even bat an eyelid and who think they aren't doing anything wrong.

 

 

 

bf x

[honeybee13]

In time, BF, you may be able to drop this guy in it.

 

But for the moment, we need to concentrate on looking after you so you can maintain your lifestyle.

 

Hugs, HB

[sangie5952]

I am sorry, but from where I was sitting (and probably from where you were sitting too!) this was inevitable. I always try to provide a balanced view of things, and I always try to warn that there are very possibly nasty consequences for standing up for yourself - it usually gets me insulted for "being on the employers side"!!! Whatever. It's probably cold comfort but you aren't alone - it happens far more often than people think. And I am not even going to start on what I think of the government!

 

So, the worst has happened. First things first - you need to sign on. Now I'm not really great at benefits stuff, but the first thing you must tell them is the whole story, and that you are taking your employer to tribunal. I can't guarantee this, but that usually gets you past a sanction, and your first thought has to be about living and paying bills.

 

Now there are no guarantees about this either, but I think you have to go for it - a claim for unfair dismissal for asserting a statutory right. Normally, your service wouldn't permit a claim, but in some circumstances you can, and this is one of them. However, I am not going to beat about the bush - you are not in a union, and you can't afford a lawyer, so this isn't going to be easy, as you are going to have to do the work on it. So.... let's start with - where is your existing claim at the moment?.... do you have, anywhere near you, a CAB with legal services or a law centre, because if you can get help, that is what you really need? And when you spoke to the ACAS conciliator, did they say nothing at all about this turn of events? Because right now you aren't looking at just a claim for holiday pay, but for unfair dismissal.

 

Based on what you have said here, showing that the dismissal was for asserting a statutory right doesn't look like it's going to be hard - the dispute will almost certainly be about your employment status, but regardless of what your employer has said, there seem to be indications that you are an employee and not a worker. So - here's a starter for ten, and you may as well get down to the job.... I'm not going to give you any links, but I have given you the two important words (employee, worker). Go find out the difference and come back and tell us what you think you are! I know that's a task, but this is where you are now, and if you want to fight back, then you must start to do these things, because there is only so much that people can do from a distance. This is down to you. You've gone this far and now you must finish it. We can assist, but can't do it for you. OK???

[honeybee13]

Hello there. Great advice from Angie.

 

CAG has a benefits forum if you want to ask questions there.

 

I can't post links atm, but the answer to your status is probably on the government 's website.

 

HB

[bloomingflower]

In time, BF, you may be able to drop this guy in it.

 

But for the moment, we need to concentrate on looking after you so you can maintain your lifestyle.

 

Hugs, HB

 

I am sorry, but from where I was sitting (and probably from where you were sitting too!) this was inevitable. I always try to provide a balanced view of things, and I always try to warn that there are very possibly nasty consequences for standing up for yourself - it usually gets me insulted for "being on the employers side"!!! Whatever. It's probably cold comfort but you aren't alone - it happens far more often than people think. And I am not even going to start on what I think of the government!

 

So, the worst has happened. First things first - you need to sign on. Now I'm not really great at benefits stuff, but the first thing you must tell them is the whole story, and that you are taking your employer to tribunal. I can't guarantee this, but that usually gets you past a sanction, and your first thought has to be about living and paying bills.

 

Now there are no guarantees about this either, but I think you have to go for it - a claim for unfair dismissal for asserting a statutory right. Normally, your service wouldn't permit a claim, but in some circumstances you can, and this is one of them. However, I am not going to beat about the bush - you are not in a union, and you can't afford a lawyer, so this isn't going to be easy, as you are going to have to do the work on it. So.... let's start with - where is your existing claim at the moment?.... do you have, anywhere near you, a CAB with legal services or a law centre, because if you can get help, that is what you really need? And when you spoke to the ACAS conciliator, did they say nothing at all about this turn of events? Because right now you aren't looking at just a claim for holiday pay, but for unfair dismissal.

 

Based on what you have said here, showing that the dismissal was for asserting a statutory right doesn't look like it's going to be hard - the dispute will almost certainly be about your employment status, but regardless of what your employer has said, there seem to be indications that you are an employee and not a worker. So - here's a starter for ten, and you may as well get down to the job.... I'm not going to give you any links, but I have given you the two important words (employee, worker). Go find out the difference and come back and tell us what you think you are! I know that's a task, but this is where you are now, and if you want to fight back, then you must start to do these things, because there is only so much that people can do from a distance. This is down to you. You've gone this far and now you must finish it. We can assist, but can't do it for you. OK???

 

 

Thank you Honeybee for your posts.

 

Thank you Sangie I have taken everything you have said above on board; Just to confirm what you have already advised in your post; I have been so busy on the phone this morning.

 

This morning I spoke to a lady from my local CAB who referred me to a firm of solicitors who offer clients a free telephone consultation. So I rang them and spoke to a gentleman who said that No 1: I can claim for non payment of Statutory Annual leave for all the hours I have worked for the past year from the date I started employment. And also all holiday owing for this year.

 

No 2 I can claim for unfair dismissal for asserting my rights to annual paid leave.

 

I have also rung the ACAS conciliator this morning to check whether she has or is still going to contact my employers to try one more chance to make them settle.

 

Or she will be sending me the EC certificate by the end of this week so that I can file the claim to a tribunal.

 

So the only thing I can do now is wait and see what happens.

 

bf x

[bloomingflower]

Thank you Honeybee for your posts.

 

Thank you Sangie I have taken everything you have said above on board; Just to confirm what you have already advised in your post; I have been so busy on the phone this morning.

 

This morning I spoke to a lady from my local CAB who referred me to a firm of solicitors who offer clients a free telephone consultation. So I rang them and spoke to a gentleman who said that No 1: I can claim for non payment of Statutory Annual leave for all the hours I have worked for the past year from the date I started employment. And also all holiday owing for this year.

 

No 2 I can claim for unfair dismissal for asserting my rights to annual paid leave.

 

I have also rung the ACAS conciliator this morning to check whether she has or is still going to contact my employers to try one more chance to make them settle.

 

Or she will be sending me the EC certificate by the end of this week so that I can file the claim to a tribunal.

 

So the only thing I can do now is wait and see what happens.

 

bf x

 

 

 

Just to add more info as I couldn't edit my above post;

 

With regards to which status I am of whether I am an employee or worker. According to the advice from ACAS I was a worker as I was on a zero hour contract. However, they did explain to me that I would have some of the same basic rights as an employee for example: being paid the correct National Minimum Wage, Annual leave and Statutory Sick Pay etc.

 

 

 

bf x

Edited July 18, 2017 by bloomingflower
edit

[sangie5952]

Just to add more info as I couldn't edit my above post;

 

With regards to which status I am of whether I am an employee or worker. According to the advice from ACAS I was a worker as I was on a zero hour contract. However, they did explain to me that I would have some of the same basic rights as an employee for example: being paid the correct National Minimum Wage, Annual leave and Statutory Sick Pay etc.

 

 

 

And that is why I need you to "step up" - a worker can't claim unfair dismissal, but I don't think you are a worker! A zero hours contract id's much more complicated than most employers think - they are hard to legally create and easy to get wrong. Did you have the right to refuse work? I cannot see any way at all upon which you can do this work and have the right to refuse work! Zero hours contacts have taken a real (and warranted,) battering in tribunals over the last few years. If you can argue that you were an employee, then you have a much better claim. And in that case you want BOTH claims to be heard at once, because they support each other. So you would not be wanting to rush into the classroom for holiday party without putting down a market that your are linking it to unfair dismissal - which hasn't been to conciliation. That's why I asked what ACAS had said - they might have mentioned that would be the case. At worst, your claim needs to be submitted with a "rider" clause that you are looking to an unfair dismissal claim. But that depends on the timescales - so getting that certificate will start the clock again, and you may not want that to happen. So, like I said - homework! Unfortunately nobody can do this for you. When you go to tribunal you stand alone, and is critical that you understand your own arguments. Parroting even the best of advice from a site won't do it - you have to understand and be able to argue it on the spot.

[honeybee13]

Here's a link to the government website with the information.

 

https://www.gov.uk/employment-status/overview

 

HB

[sangie5952]

Sorry - rubbish predictive texting too- that was supposed to be into a courtroom, not a classroom.

[bloomingflower]

Here's a link to the government website with the information.

 

https://www.gov.uk/employment-status/overview

 

HB

 

OK, after reading sangies above post I am now thoroughly confused as to what I actually am now-so I have responded to each bullet point to maybe get an answer to this.

 

Employees rights;

 

they’re required to work regularly unless they’re on leave, for example holiday, sick leave or maternity leave

 

I am required to work the 38/39 weeks of the term time for 30 hours a week 5 days a week.

 

they’re required to do a minimum number of hours and expect to be paid for time worked

 

The school run that I was doing was a minimum of 5/6 hours a day. I always got paid for all the hours that I worked.

 

a manager or supervisor is responsible for their workload, saying when a piece of work should be finished and how it should be done

 

My runs were always provided by my employer.

 

they can’t send someone else to do their work

 

Not normally no. However, they can if I was off sick.

the business deducts tax and National Insurance contributions from their wages

 

yes they do this.

they get paid holiday

 

No. This is why I am here in the first place.

 

they’re entitled to contractual or Statutory Sick Pay, and maternity or paternity pay

 

Yes, They will pay SSP but not sure about the other two.

 

they can join the business’s pension scheme

 

They don't have a pension scheme as far as I am aware.

 

the business’s disciplinary and grievance procedures apply to them

 

They don't have any disciplinary and grievance procedures written on their contract.

 

they work at the business’s premises or at an address specified by the business

I worked primarily from home.

their contract sets out redundancy procedures

 

No redundancy procedures on my contract.

 

the business provides the materials, tools and equipment for their work

 

yes.

 

they only work for the business or if they do have another job, it’s completely different from their work for the business

 

I only work for their business.

 

their contract, statement of terms and conditions or offer letter (which can be described as an ‘employment contract’) uses terms like ‘employer’ and ‘employee’

 

No. There is nothing to say that I am either a worker or an employee written on my contract. All it does say is that it is an 'initial zero hour contract'

 

 

 

bf x

Edited July 18, 2017 by bloomingflower
more info

[sangie5952]

You don't have to tick every box! But now you get why employment law is never straight forward!

 

Just because an employer doesn't have a pension scheme or a disciplinary procedure doesn't mean that you are a worker. The most important ones are about "control". Workers have greater control. BTW - it meant that the EMPLOYEE can send someone else, not the employer! You had a fixed number of hours, which your employer dictated. You worked when and as they told you. You had to do the work - and if you couldn't attend work simply because you don't want to work, well you didn't have that choice. Term time work is common, and the vast majority ARE employees - and that was a battle that had been fought before now.

 

The way you work does indicate that you are an employee, and since you were dismissed for asserting a statutory right, then I think that justifies a claim of unfair dismissal. After all, you have ACAS saying that your employers ultimatum was to drop your case and accept a new contract or he'd sack you, and he did. Case closed there! If he'd paid up, but then enforced a change of contact, he actually could have done that with no risk. He's an idiot!

[sangie5952]

Ooo. Look. I take that back slightly! In your favor though! Now this is one I'm not great at because it doesn't apply to the people I represent, who do have pensions. But doesn't the law now require all employers to provide a pension???? It is fully rolled out now isn't it??? Can anyone else clarify that for me and stop me having to go work it out? In which case, assuming you are an employee, he's also broken the law by not providing a pension!!!!

 

Oh, I love this guy. He'd be dangerous if he had a second brain cell!!!

[Emmzzi]

Ooo. Look. I take that back slightly! In your favor though! Now this is one I'm not great at because it doesn't apply to the people I represent, who do have pensions. But doesn't the law now require all employers to provide a pension???? It is fully rolled out now isn't it??? Can anyone else clarify that for me and stop me having to go work it out? In which case, assuming you are an employee, he's also broken the law by not providing a pension!!!!

 

Oh, I love this guy. He'd be dangerous if he had a second brain cell!!!

 

 

*maybe*

 

Check the staging date please OP!

 

http://www.thepensionsregulator.gov.uk/employers/staging-date.aspx

[bloomingflower]

You don't have to tick every box! But now you get why employment law is never straight forward!

 

Just because an employer doesn't have a pension scheme or a disciplinary procedure doesn't mean that you are a worker. The most important ones are about "control". Workers have greater control. BTW - it meant that the EMPLOYEE can send someone else, not the employer! You had a fixed number of hours, which your employer dictated. You worked when and as they told you. You had to do the work - and if you couldn't attend work simply because you don't want to work, well you didn't have that choice. Term time work is common, and the vast majority ARE employees - and that was a battle that had been fought before now.

 

The way you work does indicate that you are an employee, and since you were dismissed for asserting a statutory right, then I think that justifies a claim of unfair dismissal. After all, you have ACAS saying that your employers ultimatum was to drop your case and accept a new contract or he'd sack you, and he did. Case closed there! If he'd paid up, but then enforced a change of contact, he actually could have done that with no risk. He's an idiot!

 

Ooo. Look. I take that back slightly! In your favor though! Now this is one I'm not great at because it doesn't apply to the people I represent, who do have pensions. But doesn't the law now require all employers to provide a pension???? It is fully rolled out now isn't it??? Can anyone else clarify that for me and stop me having to go work it out? In which case, assuming you are an employee, he's also broken the law by not providing a pension!!!!

 

Oh, I love this guy. He'd be dangerous if he had a second brain cell!!!

 

 

Thank you sangie you have certainly made this situation a lot more clearer for me than it was a while ago. My employee status does make a lot of sense now after reading everything back.

 

It has taken me this situation to do a lot of serious hard thinking lately about what kind of 'company' I was working for.

 

The actual job I was doing was good and I have been doing this kind of work for the past 6 years. I used to work for a major company working the same kind of hours during term time only and I thoroughly enjoyed it.

 

This guy is indeed an idiot. He is not willing to sort all of this out amicably but he is rather willing for me to take him to a tribunal where he could be potentially fined a substantial sum of money. But more fool him I say.

 

I don't want to sound rude on here but how can I put it politely with out offending anyone? I am trying not to be too personal but lets just say his command of the English language is quite poor-both written and verbally. But yet at the same time he is very shrewd when it comes to money. He surely must be as he is driving around in a Porsche convertible with a personalised number plate..

 

He can afford this type of car but doesn't want to pay his employees holiday pay. Its disgusting. It has taken me this long to realise that he is nothing but a crook dressed up as a 'business' man'. (if the moderating team deem the above and the last comments inappropriate then please do delete it. I wont mind )

 

Roll on the tribunal....

 

 

 

BF x

[bloomingflower]

*maybe*

 

Check the staging date please OP!

 

http://www.thepensionsregulator.gov.uk/employers/staging-date.aspx

 

 

Thank you for the link emmzi- I will indeed have a read of this...

 

 

bf x

[sangie5952]

Goodness you won't be in trouble for such faint comments - I've been called far worse things for trying to help people here and elsewhere. Not everyone appreciates the truth! He sounds a bit like Del Boy without the redeeming charm!

[sangie5952]

*maybe*

 

Check the staging date please OP!

 

http://www.thepensionsregulator.gov.uk/employers/staging-date.aspx

 

Thanks Emmzzi. At my age, learning new employment law that I won't ever use ... well I just don't do it any more!

[bloomingflower]

You don't have to tick every box! But now you get why employment law is never straight forward!

 

Just because an employer doesn't have a pension scheme or a disciplinary procedure doesn't mean that you are a worker. The most important ones are about "control". Workers have greater control. BTW - it meant that the EMPLOYEE can send someone else, not the employer! You had a fixed number of hours, which your employer dictated. You worked when and as they told you. You had to do the work - and if you couldn't attend work simply because you don't want to work, well you didn't have that choice. Term time work is common, and the vast majority ARE employees - and that was a battle that had been fought before now.

 

The way you work does indicate that you are an employee, and since you were dismissed for asserting a statutory right, then I think that justifies a claim of unfair dismissal. After all, you have ACAS saying that your employers ultimatum was to drop your case and accept a new contract or he'd sack you, and he did. Case closed there! If he'd paid up, but then enforced a change of contact, he actually could have done that with no risk. He's an idiot!

 

Ooo. Look. I take that back slightly! In your favor though! Now this is one I'm not great at because it doesn't apply to the people I represent, who do have pensions. But doesn't the law now require all employers to provide a pension???? It is fully rolled out now isn't it??? Can anyone else clarify that for me and stop me having to go work it out? In which case, assuming you are an employee, he's also broken the law by not providing a pension!!!!

 

Oh, I love this guy. He'd be dangerous if he had a second brain cell!!!

 

 

Sangie-going back to this bit regarding how he should be providing a pension..well this is another obstacle he will have to face now..

 

However, I do feel rather stupid and gullible by not undertaking more research before I accepted my employment with him. Thinking back who in their right mind would accept a contract on one sheet of A4 paper.

 

There is a quote by the English poet William Blake it goes; hindsight is a wonderful thing but foresight is better,especially when it comes to saving life, or some pain!

 

 

 

bf x

[bloomingflower]

Goodness you won't be in trouble for such faint comments - I've been called far worse things for trying to help people here and elsewhere. Not everyone appreciates the truth! He sounds a bit like Del Boy without the redeeming charm!

 

 

I just wanted to be extra careful with my wording.

 

I really miss the old Only Fool's and Horses. Loved that programme.

 

Anyway, with my ex employer you could easily take an instant disliking to him as you say, he has no redeeming qualities whatsoever.

 

 

 

bf x

[bloomingflower]

Here's a link to the government website with the information.

 

https://www.gov.uk/employment-status/overview

 

HB

 

 

 

Thank you for this link Honeybee.

 

As you may have seen I have responded to each question on the employee status section. I thought this may also be a good way of helping others if they are having the same issues depending which type of job they do.

 

This has certainly helped me because after reading sangie's comments it did make me think that I needed to double check what the difference was between being an employee and a worker.

 

So now I know that I might be better equipped with this info to handle the tribunal when it eventually comes around.

 

 

 

bf x

[sangie5952]

Do remember that you can't just add this on to your existing claim - you will need to go to pre claim conciliation now on the unfair dismissal. And this is a choice. You don't have to do it, but if you do you have only just started and you need to start the work of understanding all this law in more detail if toy are going to do it on your own. It can be done. But it isn't going to come easily and without effort on your part.