Long term casual worker and sending of P45

[resources]

Concerning the issue of whether we are a casual worker or a an employee there is many criteria to consider for example the time we work for the employer, our skills, whether he employs us only in case of shortage or during peak time or he uses us in the normal running of our business...etc.

 

 

However I would like to know if the conclusive evidence is not when the P45 has been issued because if it has been issued one year after the start of employment this means that we are now an employee.

 

It is up to the employer to decide if he need us anymore or nor and as a consequence if he send us our P45 or not. If the employer decides because it is not convenient for him not to issue a P45 at the end of each project we could be consider as an employee

 

There is also the issue of HMRC and in order the employer not to pay tax maybe a worker has to work only for a small period of time and not come back for a long time

 

There is also the issue of the difference between temporary employee and a casual worker

[Emmzzi]

Sorry, I am not clear what your issue is please?

[resources]

The issue is if we have worked for an employer doing projects and we are dismissed after one year and the employer says that we are not entitled to claim unfair dismissal because we were workers because from time to time there were gaps of two or three weeks between the projects and as a consequence we were worker and not employee and we cannot have one year continuity service.

 

 

In this case I would like to know if the employee does not send us the P45 at the end of each project but when we were dismissed after one year if this means that we were employees and not workers and entitled to claim unfair dismissal

[Emmzzi]

ok. This is probably your best guide to worker vs employee status

 

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

[Sidewinder]

If you were dismissed after one year you would still not be able to claim Unfair Dismissal (unless for dismissal due to a protected characteristic) as the threshold is now two years.

[resources]

I have looked in this website but it gives only general information about the difference between employee and casual worker. However my problem is more specific.

 

 

The events to which I refer relates before the law changes so for me it is one-year continuity service.

[Emmzzi]

the law has been changed for a long time - you may be out of time for a claim. when did your employment start?

[resources]

My claim has been issued on time. The problem that I have is more this issue of difference between employee and casual worker to which I refer in my thread

[resources]

My opinion is that it depends when the P45 is sent to them. If it is sent at the end of each period of work they are workers. However if this is not the case and if the P45 was sent to them after one year (now is two years) they become employee on flexible hours.

The difference is that they would be able to claim unfair dismissal if they are removed from the bank register without any good reason or are dismissed in the middle of a project without any good reasons.

In fact it will depend on the need of the employer. If it is not practicable for the employer to issue a P45 to many people very often and choose not send it after each period of work and not sent it before one year they could be considered as employees. However I am not sure I am right. Otherwise staff could be used for many years nearly as permanent employee without ever obtaining the same rights as employees

[resources]

I would like to know if the 'leaving date' stated in the P45 is the date when the employment relationship ended and could be used to prove that we have enough continuity of service to claim unfair dismissal

 

 

I would like to know which regulation deals with the meaning of the 'leaving date' in the P45

[honeybee13]

Hello there.

 

If you're asking about unfair dismissal, then this is an employment query rather than a benefits one.

 

I'll move your thread to the employment forum and leave you a short term redirect to follow.

 

HB

[Sidewinder]

Other documents would take precedence - such as a letter of dismissal or personnel record. A P45 is merely a declaration of pay and tax deducted so these would have to be correct for the tax week stated on the P45. Omissions or errors to a leaving date might have an impact on the tax paid when restarting employment but nothing more.

[resources]

What happens when there is no letter of dismissal and no record ?

 

 

Moreover in order to be entirely sure I would like to know which act of parliament or regulation deals with this issue

[Emmzzi]

Lots of variables here. Can you give us more detail on what you are trying to claim and why please? Or we'll be guessing what to tell you

[Sidewinder]

What happens when there is no letter of dismissal and no record ?

 

 

Moreover in order to be entirely sure I would like to know which act of parliament or regulation deals with this issue

 

If there is no record of dismissal held by the employer, nor a letter advising of dismissal issued to the employee, then this would be open to argument - an employee might argue that a date stated on a legal document such as a P45 could imply that the employer had in his mind a termination date when completing the P45 with that date on it. There might also be implications drawn from a wage slip showing whether an employee was paid to a specific date and for no longer. This might support a date shown on a P45 in an employee's favour, or it might counter that argument and support an employer's assertion that a date on a P45 was indicative merely of the date when the final payroll was run.

 

This is not an issue covered by legislation, but one of contract - in the absence of written information one would draw inferences from documentary evidence or hearsay.

 

The legislation relating to the P45 itself would be Regulation 36 of The Income Tax (Pay As You Earn) Regulations 2003, specifically:-

 

36. (1) On ceasing to employ an employee in respect of whom a code has been issued, the employer must complete Form P45.

 

(2) The employer must then—

 

(a)send Part 1 of that form to the Inland Revenue, and

(b)provide Parts 1A, 2 and 3 to the employee,

on the day on which the employment ceases or, if that is not practicable, without unreasonable delay.

 

(3) Retirement on pension is not a cessation of employment for the purposes of this regulation if the PAYE pension income is paid by the same employer after retirement.

 

(4) The information listed in column 1 of Table 2 must, subject to the conditions set out in column 2, be provided in the various Parts of Form P45 as indicated in columns 3 to 5.

 

 

Information which must be provided in Form P45

 

Information to be provided

 

1. the employer’s PAYE reference

 

2. the employee’s national insurance number

 

3. the employee’s name

 

4. the date on which the employment ceased

 

5. the employee’s code or, if more than one, the latest code, issued by the Inland Revenue for the tax year during which the employment ceased

 

6. whether the employee’s code is used on the cumulative basis

 

7. the tax week or month in which the last relevant payment was made to the employee or, in a case falling within regulation 24, was treated as having been made

 

8. the total payments to date and the corresponding total net tax deducted

 

9. the total payments to date relating to the employment in question and the corresponding total net tax deducted

 

10. the total payments to date relating to the employment in question and the corresponding total net tax deducted

 

11. the number used by the employer to identify the employee

 

12. the department or branch in which the employee was employed

 

13. the employee’s address

 

14. the employer’s name

 

15. the employer’s address

 

16. the date the Form is completed

 

The regulations do nothing more than impose obligations regarding completion of the P45 which would be within the jurisdiction of an ET, but one could form an argument that since the Regulations stipulate that both a 'Leaving' date and a 'Form Completion' date must be entered that an employer must have had it in mind that an employee's leaving date was 'X' at the time the form was completed. It would then be for the employer to explain why that was not the case and whether this was a genuine oversight - the employee's argument would be strengthened if that cannot be adequately explained, particularly if the termination pay was consistent with the leaving date shown on the P45, and the employer's counter-argument would be more plausible if that consistency was not evident and if there was a reasonable explanation for the date error.

[resources]

I would like to use the ‘leaving date’ on my P45 to prove that I have enough continuity service to make a claim for unfair dismissal

I was suspended but usually suspension is on full pay but I was not paid

 

I have a part time job so I did not work every day

 

The reasons put forward by my employer for not having sent me before a P45 is that he has to wait the end of the payroll period before issuing a P45 and he has to wait that I was paid before issuing a P45.

 

 

The payroll period for the firm ends at the end of the month and the staffs were paid at the beginning of next month

 

My employer put forward also as reason for not having sent a P45 before the fact that 10 days after I was suspended there was the festive period and his office was closed

 

Hence the important question is whether a P45 could be issued only at the end of a payroll period when we are paid and if a P45 can be issued at any time.

 

Another important question is if the ‘leaving date’ is put automatically by the computer in the P45 when it is issued or it is the employer who chooses to put the ‘leaving date’ that he wishes on the P45.

 

 

Moreover there is only one date in the P45 i.e. the ‘leaving date’ because the date when the P45 was issued is not stated in the P45.

[Grotesque]

Were you issued a P45 whilst on suspension?

[resources]

Yes and the suspension period ended when I received my P45

 

My question is important because an employer cannot deny that the 'leaving date' in the real date of end of the employment relationship if he has decided himself which leaving date he put in the P45. Unless he says that it was a mistake of his accoutant

[Pusillanimous]

The legislation you need is the Employment Rights Act which spells out how the date of the termination of employment is calculated.

 

I'd say the date on your P45 is a good starting point if you have had no dismissal letter. Under ERA you are entitled to have written reasons for the dismissal.

 

Incidentally, the date on the P45 is entered by whoever does the payroll, and is nothing to do with what the compu'er says.

 

Does it match the date you were told you were fired?

[resources]

I started to work on a ‘zero hours contract’ for a firm to complete a project which was intended to last for seven weeks. There was a probationary period of 30 hours. After I did 43 hours I was told that I cannot carry on with the project and I was removed from the project.

 

Technically because I worked more than 30 hours my probationary period was over when I was removed from the project. However it is possible that my employer nevertheless considers that I have been removed from the project because I have failed my probationary period.

 

My supervisor told me by email that I was removed from the project because I did not do the introduction of work properly and when late I complained I was told also by email that my productivity was not good.

 

However I consider that these reasons did not correspond to the reason stated in the documents given to me by my employer to remove a worker from a project which a worker will be removed from a project if he/she did not follow repeatedly the guidance given to her/him by his/her supervisor or underperform for a significant period in comparison of the other workers on the project for the following reasons

 

• If I did not do the introduction of the work properly it is a question of guidance given by the supervisor to the worker and there is no evidence that I refuse to follow the guidance. Moreover my supervisor did not ask me to correct the way I did the introduction and did not give me any guidance concerning this matter

 

• The introduction of the work does not form part of the project itself.

 

• My supervisor told me also that I could do another project but not a project of this seniority what is not a good reason to remove me from a project according to my employer’s rule

 

• I was told that I underperformed but not that I underperformed in comparison to the other workers in the project. I know that I did not underperform in comparison to the other workers in the project because I know what was the work that the others workers did

 

• My supervisor told me that my productivity was not good because I worked 70 hours even though I work in reality only 40 hours and I had to correct him what is evidence that my productivity was not property assessed by my supervisor.

 

• My employer did not follow its own rules to assess my work.

 

I think that my supervisor did not tell me the real reason why I was removed from the project and that he was looking for an excuse. The reason could be that my employer has phoned to one of my previous employers who told him bad things about me because I issued in the past a claim to the ET against him or it is one of the discriminatory reasons like age, race or disability for example.

 

I am unhappy because I have refused to work for another firm to work for this firm and at the end I have no work at all. I would like to know if I can bring a claim for breach of contract against my employer because ‘zero hours contract’ mean a contract and I would like to know if my employer by not following its own rules concerning the removal of a worker from a project has committed a breach of contract. I would like to claim loss of earnings within a breach of contract and be paid at least the six remaining weeks of the project that I was not paid. I would like to claim also for injury of feelings

 

I would like to know also if I have to issue my claim to the Employment Tribunal or to the County Court

[Maki]

If you were on a true zero hours contract, your employer could simply choose to say they have no hours for you each week for the remaining weeks (if you are on a fixed period contract, or forever if you are on an open ended contract)

 

Unfortunately, until you have worked for an employee for more than 2 years you have no rights to take your employer to a tribunal for unfair dismissal (or much else) unless it's on grounds for discrimination where special rules apply

[resources]

I think that you are maybe right and I was in a ‘fixed term contract’ and not in a ‘zero hours contract’ because I should have been employed until the end of a specific event i.e. the end of a project. However contrary to what you say I do not want to claim for unfair dismissal for which two years of continuity of work is required but I want to claim for breach of contract because the fixed term contract was ended prematurely by my employer without according to me any good reasons as explained in my first post.

 

As explained in my first post there is also the issue of the probationary period.

 

I have an additional issue because the employees of this firm who were in a fixed term contract were entitled to join the pension scheme of this firm and I was prevented from joining it because the contract was ended prematurely by my employer. Therefore I would like to know if I can claim also for this reason and if I can ask the Employment Tribunal to force this previous employer to enrol me now in his pension scheme.

 

I would like to know if the formal disciplinary procedure in case of underperformance applies also to the probationary period because if yes does the very short probationary period of 30 hours has any sense in law because the disciplinary procedure says that the worker who underperformed could be dismissed if he underperformed repeatedly after being warned several times what means that his underperformance should be assessed during a long period and 30 hours is not a long period?

 

My other question is does the employer need to have a probation period if there is already a clause in the contract which says that he can remove a worker from a project if he underperforms?

 

Therefore I would like to know if I issue a claim to the Employment Tribunal do I need to make any reference in the claim form to my probation period or only to the clause which says that my employer can remove a worker from a project who underperforms?

[Emmzzi]

Can you clarify what you think your claim is for please? You raise a lot of points but I can't see one which in law you would be compemsated for.

[steampowered]

The only possible claim it sounds like you might have is a claim for breach of contract. In which case you would need to say exactly what part of the contract you believe has been breached?

 

Even if the reasons given for your dismissal were totally bogus, I suppose the employer would have been entitled to reduce your hours to zero, or to dismiss you (one week's notice is required if you have more than one month's service).

 

Injury for damage to feelings is not available for dismissal claims. In any event you do not have the 2 years service required to claim for unfair dismissal.

[ericsbrother]

were you paid for the work you did and then an uplift of 12% for holiday pay accrued? If not you have a claim but other than that very little of substance as you appear to be paid an hourly rate rather than say £xxxx for doing a specific project, regardless of how long it took to complete