Employee status query

[realjustice]

Good afternoon all

This is just a quick query, I am in the middle of an ET claim and I am claiming constructive unfair dismissal and discrimination, I have a substantial amount of reliable evidence to support both claims. I did my ET1 form by myself but through the help of a friend who is a union rep and this was before I instructed a solicitor.

However, now that there is a solicitor on board, they are asking me to withdraw the constructive unfair dismissal case, although they accept the evidence points that this did happen. They claim that I do not have the qualifying period for making this claim. I worked for the respondent for just under 5 years but only one year as a direct employee before I was forced out following making a complaint of discrimination and harassment, prior to that I worked for the respondent through an agency.

However, in 2017 following changes to IR35 and the fact that the respondent asked me to stop working through my own limited company, I wrote to the HMRC and complained about this, but the HMRC agreed with the respondent's decision, saying the I was under the full control of the respondent throughout the contract based on 5 key facts:

- There was an existence of a 'mutuality of obligations'
- The fact that I was not allowed to send a substitute to replace me
- The fact that my work was dictated and supervised by the respondent, I had to do a minimum 35 hours per week, I had to be in the respondents office during their core hours unless otherwise agreed and I had to give advance notice of at least 2 weeks of any leave to be taken and was required to work unless I was on pre-agreed leave. I could not work from home and all work materials, tools and equipment were provided by the respondent
- I was subject to the respondent's disciplinary procedures, the respondent confirmed this themselves
- I was issued with the respondent's ID badge and was asked to represent the respondent officially

Significantly, when I became a direct employee my job title nor the nature of work did not change and I carried on working on the same projects I was doing through the agency. For all these reasons, the HRMC concluded that I was 'an employee in disguise'.

So therefore, with over nearly 5 years continuous service, I fail to see how I cannot claim unfair dismissal. Can someone please advise? Would be much appreciated.

[ULA]

The first question for me to ask is what are the reasons that your solicitor (I presume with good employment law experience) has given for saying that you do not qualify as an employee, given the ruling of HMRC?

[realjustice]

Thank you Ula, I honestly don't know, I am very dissatisfied with them overall. They are trying to get a quick settlement and do not wish to proceed to a tribunal hearing and they are planning on going in with a very low offer, not much more than was already offered at ACAS which seriously undermines the whole point of the claim.

They've decided the claim is at the bottom end of the lower vento band for a case in which the discrimination and harassment lasted over months, often in public and included racial slurs, intimidation and malicious, false rumours about drug use and when I complained to the respondent nothing was done. Instead the whole thing was turned on me, with managers saying I was misconstruing things about the perpetrator and he was put in charge of work events right after my complaints.

Things got so bad that I needed therapy and unfortunately even attempted to take my own life. The solicitors are saying that the therapist report is of no use and I will need to claim personal injury and get a new psychiatrist report. The therapist I saw is a qualified doctor (although not medical) who specialises in employee health and well-being, the therapy cost me a lot but the solicitors are refusing to take this into account as they claimed I was able to move on quickly. It took me just over a month to find a new job and the respondent did offer me a PILON for a month to give me time to find a new job.

I am thinking of dropping the solicitors and take on the case myself with the help my friend who is an experienced union rep but I have signed a no win-no fee agreement, although the work they've done so far is fairly minimal.

[ULA]

If you want to back out of using the solicitor you will need to look at the terms of the no win no fee agreement you entered into with them. They may try and charge you for work done to date if you dis-instruct them at this point.

[realjustice]

Thank you, the work so far only involves a schedule of loss and some basic admin work. I have told them to place all further work on hold until we get the respondent's ET3 but I don't understand why they won't pursue what I've already claimed in my ET1 and they are dismissing this even before the preliminary hearing which is due soon.