am i fired or redundent?

[deza]

:confused: can anyone help! the company I work for has just told me I am now (free lance) I was on salary and I have a contract of employment, I have been with the company for two years can they do this?

[FlyingForFun]

It would depend on the small-print of your contract. I assume that this is an aviation-related job? I don't know enough about aviation to know what would be "normal" in these circumstances. In the IT industry, though, it would be normal for your employment contract to state that your company has to give you 1 or 3 months notice if they want to terminate the contract. Very often they will give you payment in lieu of this notice - this may or may not be specified in the contract, and whether it is or not actually makes very little difference except from a tax point of view (you're better of if payment in lieu is not in your contract, from a tax point of view, as I've recently found out).

Having said that, details of contracts can always be altered by mutual consent. So if the financial terms of your free-lance work are better than your old salary, you may have implicitly agreed to amend your contract and forego your notice in exchange for the free-lance work.

Sorry, no simple answer! I'm sure there are legal types around here who can help out, but you're probably more likely to find them on JetBlast than Wannabes.

FFF
-------------

[no sponsor]

I'm not totally sure what you are saying. You were a employed individual on a salary (paid weekly or monthly) and now they have told you that you are no longer salaried staff?

If this is the case, I would say this is illegal without your consultation. Normally, you would have to leave, and be re-employed with a free lance contract.

Redundancies can only happen if a post is made redundant, not the person.

[RichardH]

Your company is really pushing its luck.

The reason why people are often made reduntant/fired before 2 years is there is no need for the company to provide a redunancy package. It is mandatory after 2 years, even if it doesn't mount to a lot.

However, it seems they have just changed your contract if you are now working for them "freelance", if so you are entitled to either the money or time as the notice period states in your contract.

BUT. and it's a big BUT. I think they have introduced this system so they can avoid Employers National Insurance & other Employer liabilities. The Inland Revenue do not like this get out.

If you are really "freelance" then you can work for who you like, when & how you like, that's the whole point of being self-employed. If you are not free to go anywhere, then the IR
will state you are an EMPLOYEE of the company, whether they like it or not. The IR rules are clear cut.

I think you should seek professional advice from, Job Centre, Inland Revenue (they will love to know) & if needed a Solicitor.

You have nothing to lose, a genuine company would not behave in such a shoddy fashion - shop them.

[Gin Slinger]

Your local Citizen's Advice Bureau would be an excellent first point of call - they can give practical advice on what to do initially, and if that fails, they can point you in the direction of a local solicitor how specialises in employment law.

[Send Clowns]

I think the short answer is no - check with the Inland Revenue. The reason I say this is I am desperately trying to be freelance. It has serious tax advantages (a lot of expenses can be offset), but because of this the government has recently tightened the definition of self-employed, so if you are always working for the same employer doing the same job all the time you are an employee.

Of course because of modern employment legislation this entitles you to holiday, sick leave, maternity leave etc.

I note you were employed by the company for two years. This is an important point, as it means that in any case they cannot sack you without good cause. They also cannot make you redundant then take you on self-employed - clearly you are not redundant if they need your services (my father successfully took an employer to tribunal on the last, when they were taken over by what turned out to be a bunch of bullies who sidelined him, put their man in his place and made him redundant. He was not redundant, as he had been replaced).

My father enjoyed his employment tribunal, as he was fed up of his then bosses. If you go that route, have fun!

[foghorn]

It's called the Friday to Monday scenario - you leave as an employee on a Friday to come back on Monday as a freelance doing exactly the same job.

The government has cracked down hard on the tax benefits of this in legislation known in the freelance/contract world as IR35. bascially there aren't any tax benefits anymore unless you work for multiple clients rather than one employer.

However as long as the company was not in breach of your contract of employment (did they give you due notice and statutory redundancy pay - as has been said at two years service you qualify for this?), there is nothing stopping your employer from doing this legally, and nothing the government can do about it. Sorry, mate - although do contact the Citizens Advice Bureau or an employment lawayer for the definitive word.

cheers!
foggy.

(Send Clowns was your dad actually made redundant, or given the push under other pretenses or summarily dismissed? My understanding of employment law - caveat I'm no expert - is that as long as an employer sticks to the contractual notice period and pays the statutory redundancy pay then they can make pretty much anyone redundant without giving any futher reason).

[WangEye]

Are you a member of a union? Saves a lot of work and/or expense in just this sort of situation and if only used once in a lifetime can be value for money. Contact them - they will know the law and advise you of any advantages such as those in the previous post above - or not. You would be lucky, however, to get help or advice retrospectively if you joined now, after the event.

If not in a union then contact - Citizens Advice Bureaux and/or
ACAS (in your local phone book under Advisory, Concillaition and Arbitration Services).

Solicitors need to be good (some are not) and will often be inclined to overstate your case to get your business. Your local CAB will, however, have a list of specialist employment solicitors who offer free or fixed fee initial advice (£10 or £25 for first session) under various schemes. They will know the good ones.

Sometimes your company union man (or woman) will happily advise a non-member. They often know how a company will react to being challenged.

ACT QUICKLY - your continued working can be taken as acceptance of the changed arrangement if you leave it.

I am on shaky ground on the legalities even though I do know quite a bit about employment law - it is a real maze.You have statutory rights such as not to be dismissed unfairly (you qualify after one year of service) so you cannot just be dismissed even if given payment in lieu of notice. Certainly if no payment was made you can both sue for compensation and for wrongful dismissal. You can resort to an Employment Tribunal but need to have met certain conditions - CAB and ACAS can advise on this.

If you want to study - but be quick - an accessible book is Selwyns Law of Employment. Library or any good bookshop.

Your initial objective is to get advice and, if appropriate, register your objection to the change with your employer ASAP. Their greivance procedure might be used to formally request reconsideration (but seek advice first) but may have a time limit to do this, hence the hurry. Their disciplinary procedure, if they have one, must include a means of appeal - again there may be a time limit for lodging one. You can always withdraw it.

Remember, your response to this situation will affect those that follow but don't needlessly sacrifice your livliehood for a principle unless you are sure about it.

ALL YOU OTHERS OUT THERE - JOIN A UNION.


WE.

PS


Foghorn is wrong (sorry, I just reread the thread!).

Your contract cannot be just unilaterally broken without reason. It sounds likely that your statutory (legal) rights have been broken, your contractural rights have been broken and that you have been dismissed unfairly from your employment (dealt with in an Employment Tribunal that tests reasonableness as well as the law).

Much depends on the detail but your rights cannot be written out by clever contractual words.

Of couse, the consequences of a challenge, etc, may outwiegh the potential gains - hence the need to seek advice.

WE.

[deza]

thanks all you guys, its a mine field out there,at the moment i am looking at my contract, and will post it in due corse less all the legal no no's.
cheers

deza

[Send Clowns]

Foghorn

No, it was just that he had been made redundant, but the job was still there. He'd been paid his notice i.a.w. contract, but he successfully argued that he had been replaced by someone who was not better at the job (the growth figures were way down) so his sideways shift had been false, the redundancy was therefore from his original post and that was not a redundant post. I think that the reason is he had been in the job for two years.

From the start of employment they have to comply with your contract (I was made redundant last year after only 5 months, but received my notice as per my contract). After two years* they can only release you involuntarily from employment if they have a good reason so to do.

I agree join a union. His next job but one they tried to make my Dad resign to avoid making him redundant when the market he had been selling to disappeared. He was happy to take redundancy, but not to resign. His union backed him all the way (and he spent 9 months not caring how hard he worked because the company was treating him like s#*t. You can imagine working from home he had quite a good time, and got a bit of flying done :D ) and finally the company was forced to offer him redundancy.

*Ooops, should say 'one year', thanks WangEye - this is a recent change, I believe in line with the EU.

[Sensible]

Steady on there folks, Deza presumably wants to keep on working! The fact is as has been previously said by Send Clowns is that if you are working for one employer then by definition you are not freelance. Lots of people want to be "self employed" because of all the tax breaks. The IR have different ideas and the employer not the employee will pick up the tab from the IR if they deem the employee to be an employee rather than a contractor after all.

Deza needs to take a conciliatory stance and try to talk through things with his employer. If that doesn't work then he needs to look for another job. It may well be that if he has been continuously employed for more than two years then he may be due redundancy cash. He would almost certainly have a claim for cash in lieu of notice or he may even be required to work his notice. He may have a claim for unfair dismissal. All maybes and mights, reading through the contract of employment may provide a few clues. If there is no contract agreed then his statutory rights apply (that doesn't mean that the employer can do what he wants because there was no written contract!).

All sorts of remedies may be available to Deza but is it really worth the hassle? and does he want to risk being noted as a troublemaker? Employers are not keen on employing known troublemakers so any victory may be short lived and very hollow!

Deza has these options in my opinion:
1. Try to talk his employer around to keep him employed.
2. Refuse the offer of freelance work and accept either the employer agreeing to continue employing him or alternatively dismissing him (get it in writing). Only then should he look at what remedies might be available to him.
3. Accepting the freelance work and maybe look for another job.

One of the downsides of self employment is that after becoming self-employed, no unemployment benefit is payable for I believe six weeks after becoming unemployed!!!!!!

Ain life a bitch sometimes? Good luck Deza

[foghorn]

I stand corrected on the redundancy count. To make someone redundant genuine redundancy must exist (ie. not about to be replace with someone else), hence it doesn't apply here.

Send Clowns it must be pretty rotten for your Dad to have to go through the employment law mill twice. In the second case it sounds like a classic case of constructive dismissal. Something that my mother went through last year (which she went on to win at ACAS just before a tribunal).

WangEye

You said Foghorn is wrong (sorry, I just reread the thread!). Your contract cannot be just unilaterally broken without reason. It sounds likely that your statutory (legal) rights have been broken, your contractural rights have been broken'

But I said However as long as the company was not in breach of your contract of employment... there is nothing stopping your employer from doing this legally..

(emphasis added)
:confused: :confused: :confused:

Basically now that I've been corrected on the redundancy point by Send Clowns, deza's case sounds like unfair dismissal and therefore a breach of contract. But I say again, I'm no expert, I only know what I know from being closely involved with an unfair dismissal situation last year.

cheers!
foggy

[FlyingForFun]

Guys, I don't know exactly what the law says about redundancy, but I do know that it's possible to lose your permanent job and then immediately start doing the same job again on a feelance basis.

Several years ago, it was quite common in IT. Directors were told they had to reduce costs. So they told their managers to reduce head-count. Managers would make their staff redundant, thus doing exactly what they'd been asked. They'd then immediately contract the people they'd made redundant to do the same job.

Of course this didn't have the desired effect of cutting costs, because the staff would earn more on their contract than they did on their salary, which is one of the reasons why the reverse is happening now and contractors are being forced to accept permanent positions. But that's not the point - it can happen, and it used to be quite common.

Whether that situation is analagous to Deza's, I'm not sure, he hasn't given us enough information. The vast majority of people who were "forced" to take contract work were quite happy about it beacuse of the extra cash they earnt! Deza obviously isn't happy about the situation, though, so it's obviously not exactly the same situation...

FFF
----------------

[Send Clowns]

Good point, Sensible (obviously a well-chosen name!). The examples I have used are the ones I know that happened to get contentious. I would obviously recommend trying to sort things out in an amicable way first!

Don't worry about my Dad foghorn - he always worked hard for employers, but when the second one started screwing him around he just sat back and did the bare minmum. Not seen him enjoy himself so much for years, he even seemed enlivened by the challenge of the disagreement (as those of you I have debated against may realise I like a robust disagreement. I take after my father in that), and he got a lot of flying done. He now has another job, selling GPS and P-RNAV for what used to be Trimble (now Freeflight Systems), so is pleased to be back in the aviation sector.

FFF

It was the IT sector that made most fuss when the rules were changed (last year?). Not allowed now.

[Sensible]

Send Clowns, Don't be fooled, the name is well chosen only to induce a false sense of security into the unwary :D :D

In any event, legal action is the last resort, there is little justice in the world and a victory is not always a victory when time, effort and cost is weighed up! moral victories often become very expensive!!!

[WangEye]

deza

Sensible is quite right about concilation, etc. But before tackling his option 1 it would be of benefit to know where you stand. Stop mucking about (sorry for bluntness) - get on the phone to ACAS and / or down to your local CAB BEFORE you do anything - their advice is free and confidential - and good.


Foghorn

My apologies - I reread badly! The rest of what I said, however, remains correct.


And JOIN A UNION.
I say this as a Staff Association official (similar to a CC in aviation) who has spent hundreds of hours trying to advise and sometimes represent people who would be better advised and represented by the real experts that a union will have on call. The alternative is an expensive lawyer who will, anyway, see it only in legal terms (i.e. not necessarily conciliatory).

Good luck.

WE

[foghorn]

No worries WangEye sometimes my threads are a bit long winded.

I can only echo your comments on joining a union - even if your politics do not agree with the organised labour/lefty bits of joining a union, think of the subs as legal protection insurance. If you do need it, you'll be incredibly glad you paid the subs - union legal departments are highly experienced in employment law and are free to members.

I would probably be financially supporting my mother now if it weren't for her union's efforts in securing justice in her dismissal case.

cheers!
foggy.

[twistedenginestarter]

However as long as the company was not in breach of your contract of employment... there is nothing stopping your employer from doing this legally..

This is not true. Employment law, like many other aspects of law, is set down by the State. You, or your employer, cannot contract out of the law. An employer has obligations towards employees irrespective of what is written in the contract of employment.

Having said that, we are in a deep recession so if someone wants to abuse you, you may not practically be able to resist.

[foghorn]

When I originally said that I took the statutory requirements as a given (I nodded to them in my original post). I guess I'm going to have to be more specific when posting in future.

As you say, with all of these things, there are ways and means of employers doing many things that are actually outside the spirit and the letter of the law or the contract.

cheers!
foggy.

[VIKING9]

I was until recently, employed by a company at STN. Now, on 30th August 2002, I received a letter in the post from the MD saying I had been made redundant. It came as a shock because I was under the impression that the company had to discuss redundancies with the staff before actually doing it. They didn't. Anyway, my letter went on to say that I was being given once months notice and I was asked to take it as “garden leave“. The letter failed to mention the following very important points:

1. Payment of owed salary
2. Payment of owed leave pay
3. Issue of P45 document
4. Returning of all company property
5. Returning of Airport Security ID pass

My lawyer had a field day when I mentioned the above to him, in fact, he's building a case right now just in case I don't receive my owed money when the notice period has expired, Mmmm next week :rolleyes:

It would seem that not only did the company NOT inform my line manager, they have breached a few employment rules AND the aviation security act.

The bottom line is this. My position was not made redundant. The job still functions and it would appear that maybe my position will be filled within 6 months, again, not a good idea.
My case was personal. I have always followed the rules and regulations and always spoke my mind when I knew I was right. Unfortunately, certain people in my ex company don't agree. They called it redundancy - I'd call it being fired.

I too had a contract of employment which took me a year to get, yes one year. I'm also being told that I have to wait until 31st October to receive my final pay cheque, which is actually 28 days AFTER my employment offically ends. To me, that sounds like someone is holding on to my money, against my rights.

I'm not a pilot, and it doesn't really matter what my position was. The fact is, what is happening here is not right.

Verdict..... I'm glad I'm out of it, and assuming I get my money that is owed, I'll be happy. If not, my lawyer will be tapping on someones door....... The person who did this will possibly regret doing such things to people. What goes around comes around...:D

[IMMELMAN]

Deza - you are registered as a pilot - if you are a member of BALPA, contact them - they have all the info on this and will be able to help - they have a wealth of experience in this area and if they feel you have a case, they will pay for expert legal advice and see you through it. If not in BALPA - this is one very good reason for joining, so it does not happen again - Good Luck

[Engineer]

VIKING9

Looks like the cat finally got your tongue and you have now joined an elite section

[VIKING9]

engineer - all will be revealed very soon. The pleasure is about to start :rolleyes:

If someone gives you a redundancy letter so as to make you redundant, what happens if they take it back a few hours later and say it's not happening? Apart from being completely unprofessional, it shows the signs of the person handing it over, to be lose in the head somewhat surely. I mean, one would only make one redundant if all the pros and cons had been gone through, the person involved was involved in discussion about the redundancy and that there was no other alternative. To take it all back seems somewhat odd to me. Comments would be appreciated on this and my previous post. :cool:

[Engineer]

VIKING9

Answer is simple they do things different in Newcastle :D

[buckleydj]

Deza,

Under EU law if an employer terminates the original terms of your contract and then continues to employ you under a different contract (be it free lance or otherwise) a Tribunal can view this as a deliberate attempt to avoid having to comply with the various employment laws (If the break between the finish of your original contract and the start of your new one is less than three months which it appears to be in this case). If that is the case the Tribunals can find the your contract in terms of service was not actually broken and hence you are still covered by legislation.

As the other posts have mentioned however, alot will depend on the terms of your original contract ie Was it fixed term, specific purpose or one of indefinite duration.

Here in Ireland the amount of case law in this area is increasing so if it ever came to a fight I'm sure there is plenty of precedent in the UK but again its very complex so I'd say get some professional advice.