Automatic Unfair Dismissal Tribunal ft. sham self-employment, covert recordings

[Refusetolose]

Hi, I'm in England and am in the process of an Employment Tribunal for several claims, but the main one is (Automatic) Unfair Dismissal. I'm hoping the well-informed people on here will be able to help with some questions.

To summarise the case as fast as possible

Key meeting, proposed sham self-employment and disguised dismissal

Things came to a head in my 22nd month there. It was the summer and as we approached a bank holiday (noone ever worked bank holidays there) I wanted to use my accrued holiday. I also had some exams coming up for a work qualification (main job) and had mentioned that for a time I would have less availability to work. This should have been fine under a Zero Hours Contract where I could theoretically 'agree' shifts with my employer.

I was called into a meeting and told they wanted me to start "invoicing them for my work" (go off the books) because "it would benefit the business and they didn't want me to keep accruing holiday". I agreed that during the exam period "ad-hoc" shifts would be best. I recorded the entire meeting. I was aware of several other staff there that were being paid in cash (literally a brown envelope at the end of the shift) and my predecessor as bar&restaurant manager would occasionally come back on busy nights and work for the same thing. The fine detail of such an arrangement was never discussed as over the next week I found my holiday was significantly underpaid again and when I complained to the owners (referencing the lack of clear policy and that they were doing this to numerous staff) I was kicked out of the staff rota/chat group without warning exactly 2 weeks after the meeting. When I asked if I had been dismissed a few days later I was told (via email) that I had resigned. I asked for more detail of this fictitious resignation but was not given any until involved in the EC in which they clarified that I had resigned in the final meeting described above. Either way, a resignation would be via letter/email/text and this naturally doesn't exist so I think a judge will see the lie there. A resignation would also of course have an end date, which was never discussed in any form. The full timeline of my dismissal was:

a) meeting on 07.08.23
b)continued disputes over pay and holiday deductions 11.08.23 and onwards.
c) Abruptly kicked out of group chat/rota system on 21.08.23
d) 21st or 22nd August (will check and update this) HMRC notified by employer I no longer worked there (I only found this in retrospect).


I had the Preliminary Hearing (PH) last week. Other sides solicitor has asked for some info and more issues have become clear. My questions are:
1. They asked for and were given the (very incriminating) covert recordings after the PH. They said they'd settle if they were as strong as I claimed. However, a week later they've not contacted me at all. Am I right to chase for a response, or at least confirmation they've been received?
2. Central to my claim/s (as per previous posts) is that the Respondent "proposed" (their exact word) that I go "off the system" and invoice for future shifts. What this meant in practice was working for cash and not having holiday benefits etc (the stated reason for the change). However, in the recorded meeting, I agreed to these changes (which were never effected). Does that weaken my case? I agreed under duress, without understanding what it meant (it wasn't fully explained or ever again) and surely no employee can be criticised for agreeing to changes against their interest when pressured by their employer? Either way, I was dismissed before anything changed.
3. I said I agreed to work ad-hoc from that point on. Given I was on a Zero Hours Contract already do you agree this is not equivalent to resignation?

[ULA]

Can you confirm the date of starting on your contract and date of dismissal please.

In answer to your questions:

1. At this point I would just confirm that the recordings have been received.

2. Changes to a how a contract is based and moving effectivley to self-employed has many implications for both parties which would need to be thought through before being agreed. Not something that can be agreed to at a single meeting, particularly if thus is the first you have been asked about this

3. A zero hours contract means that your employer is not obliged to provide a minimum numbers of hours to work and you are not obliged to work hours when requeated to so yes ad hoc. However up to this point had you been working "regular hours"?

[Refusetolose]

Hi, thanks for the response. I was tempted to add a lot more detail but didn't want to drown readers in info.

I'd worked there 22 months when I was dismissed. I'm claiming for (Automatic) Unfair Dismissal (so no 2 year minimum) for being dismissed for asking for correct holiday pay and salary. I can prove repeated unfair deductions (they even admitted it and repaid it after dismissing me) and that I'd been querying holiday in the days before the meeting, and on the day, that they proposed the change where I begin "invoicing them". They told HMRC (but not me) I was no longer an employee 4 days later and kicked me out of the group chat/rota 2 weeks later in response to me continuing to argue about holiday underpayments to me and other employees.

1. Thankyou. I've now done this.

2. This is what I thought. It had never been discussed prior. There was no leaving date, actual contractual changes or the word "resignation" even mentioned. Let alone in writing. Funny that the Respondent has variously claimed in pre-ACAs emails and their ET3 that this change was an "off the cuff, suggestion" and then subsequently that the "conversation was very much us accepting your resignation". I'd like to think they have no chance, but exposing them as lying to this degree still apparently isn't an auto win and they can just change tact in the hearing.

I think they will pivot to claiming I was going to leave anyway (I think I'd indicated I was unhappy and wanted to leave to people they're calling as witnesses).Which isn't much of a defense, especially when I can show they were repeatedly making unfair deductions.

Crucially, I also have texts to and from one of their witnesses where she complains about also being underpaid and I clarify I believe they sacked me for questioning unfair deductions. She asks if I've been kicked out the group chat/rota because I "don't want to do shifts" and I replied it's because I want to work ad hoc going forward and because they don't want to pay me correctly.

3. Yes, this is what I thought. the de facto relationship was them expecting me to work every hour they wanted up to and including 20+ hours a week on top of my main full-time job, when mutually convenient hours should have actually been agreed. I pointed out, at the start of my employment, that I was clearly a core employee and asked for a minimum number of hours in my contract. They insisted on a ZHC.

What I will argue is that I was asking for a change in the de facto relationship to match the actual ZHC. I wanted to only work hours that I agreed on. This is obviously not equivalent to resignation and shouldn't have required any changes to my contract at all, or dismissal!