Help required for a friend please

[CYNthesys]

Hi,
Ive very little experience in the employment law field and my friend is in need of urgent advice please. There are a few issues that need addressing.

My friend is an NHS trained nurse, and she has for the last few years worked full time for a private school as the schools on site nurse, working on a self-employed basis.

Due to the recession all the teachers and staff, whether employees or self employed were asked to agree to a few reduced hours per week until the situation improved, on the understanding that it would be made up to them when the economic situation improved.

My friend has never had a contract, but I imagine, and I could be wrong here that she has an implied contract by agreeing to reduced hours along with all the other staff?

Anyway a few days ago she learnt that the school was intending to join forces with another private school in the same city. A co-ordinator ? from the other school told her that a nurse at her school was no longer required and she was out of a job, then proceeded to ask her when she would be leaving.

My friend was in shock, and the coordinator went on to say you can always go back and work for xxxxx. Friend said "how do you know that I used to work for xxxxx" to which the coordinator replied that when accessing her file she came across that info.

My questions
1. Given that my friend, along with employees of the school was asked to agree to reduced working hours does my friend, as a worker albeit on a self-employed basis have any employment rights?
2.Secondly, what right did her school have to allow a 3rd party (the other school) to access her personal records?

Any advice appreciated

[charitynjw]

Re: Help required for a friend please

Hi,
Ive very little experience in the employment law field and my friend is in need of urgent advice please. There are a few issues that need addressing.

My friend is an NHS trained nurse, and she has for the last few years worked full time for a private school as the schools on site nurse, working on a self-employed basis.
The 'self-employed' label is only a small factor when determining the status of a worker.
More importance would be put on factors such as mutuality of obligation, the degree of control the employer has over the worker (ie is your friend free to rearrange her schedule, or can she send someone else there instead of herself), the degree of integration into the organisation, does she receive what could be seen as a wage rather than an invoiced payment (if you see what I mean - think paying a builder for a job - even if it's spread over a number of payments, it won't resemble a wage).
Ready Mixed Concrete v Ministry of Pensions [1968] 2 QB 497
Carmichael v National Power [2000] IRLR 43

Due to the recession all the teachers and staff, whether employees or self employed were asked to agree to a few reduced hours per week until the situation improved, on the understanding that it would be made up to them when the economic situation improved.
This could be regarded as a modification of the contract - there is an offer, an acceptance, & a consideration for value, that being the promise of 'making it up to them' - of course, it could be countered that the economic situation has not yet improved, & events have intervened, rendering the 'promise' as impossible.

My friend has never had a contract, but I imagine, and I could be wrong here that she has an implied contract by agreeing to reduced hours along with all the other staff?
There is no requirement in law for there to be a written contract of employment; the contract will be in force from day 1 as regards implied terms (pay, holidays, H&S, working hours etc.)
Full employment rights would have kicked in when she was employed for one year (this has now been increased to two years for employees starting after April 2012)
What she should have received by law, if an employee, is a statement of employment particulars; however, as they think she is s/employed, I would guess this has never been given.

Anyway a few days ago she learnt that the school was intending to join forces with another private school in the same city. A co-ordinator ? from the other school told her that a nurse at her school was no longer required and she was out of a job, then proceeded to ask her when she would be leaving.
You would have to find out the remit & boundaries of responsibility of this person (ie, does she have the necessary authorisation to access this kind of info. Even if she hasn't necessarily breached the DPA herself, if she shouldn't have access, the Data Controller could find themselves in hot water.
To be honest, in the circumstances a SAR to both schools might be quite revealing.

My friend was in shock, and the coordinator went on to say you can always go back and work for xxxxx. Friend said "how do you know that I used to work for xxxxx" to which the coordinator replied that when accessing her file she came across that info.

My questions
1. Given that my friend, along with employees of the school was asked to agree to reduced working hours does my friend, as a worker albeit on a self-employed basis have any employment rights?
2.Secondly, what right did her school have to allow a 3rd party (the other school) to access her personal records?

Any advice appreciated

HI CYNthesis,

Just a few ramblings!

This co-ordinator seems to be circumventing redundancy procedures, which is automatically unfair dismissal; but as it is , or could be, 'idle speculation', it might be a tough one to call.
Your friend could always submit a grievance though - it would then have to be officially investigated.
It might be worth a phone call to ACAS = http://www.acas.org.uk/index.aspx?articleid=1680

[CYNthesys]

Re: Help required for a friend please

Thanks Charitynjw, thats very helpful, will pass this onto my friend.

As for ACAS, I suggested them as her first point of call, but when she rang them they said they couldnt help as she was self employed !

As for the DPA issues, the schools havent joined forces yet, still in the preparation stages, so dont know on what basis the 3rd party can legally access her personal file

Also my friend is approaching state retirement age in 2-3 years, so if she is entitled to redundancy pay it could be a decent amount.

[charitynjw]

Re: Help required for a friend please

Thanks Charitynjw, thats very helpful, will pass this onto my friend.

As for ACAS, I suggested them as her first point of call, but when she rang them they said they couldnt help as she was self employed !

As for the DPA issues, the schools havent joined forces yet, still in the preparation stages, so dont know on what basis the 3rd party can legally access her personal file

Also my friend is approaching state retirement age in 2-3 years, so if she is entitled to redundancy pay it could be a decent amount.

Hi CYN

Funny things, labels (s/employed); once they're stuck on, they're a devil to shift!

I would suggest phoning ACAS back & quote the above info, stressing the supportive case law.

If possible, get behind the 1st point of contact adviser, & speak to a more knowledgeable bod; often the first person is referring to a prepared script, & doesn't have the necessary experience/training in the 'finer' points.
The case law should chivvy them up a bit.

[enaid]

Re: Help required for a friend please

• [*=left]
  Don't know if this is of any use
  [*=left]
  [*=left]Federation of Small Businesses (FSB) - The FSB represents the interests of the self-employed and small businesses and aims to promote and further the interests of these throughout the UK.

[TUTTSI]

Re: Help required for a friend please

Cyn, just to say that I am a self employed person, and in a job where I worked, they laid down that I had to work certain days, be there at 9 in morning etc.... when they went to administration I claimed redundancy and won because I could not choose my hours, they also paid me holiday pay and bank holidays. I had to ask them when I could go on holiday so in a way they treated me like an employee. So I claimed redundancy and got it.

I checked this very point just recently, there is no boundaries for upper age limit because of my situation, so your friend if she can prove that they treated her like an employee then she will get redundancy payment it will be so much for each year she has worked. I know mine worked out to be almost a months salary payment.

I have a similar situation brewing at the moment that if the company which I work for ever go into administration then I would again go for redundancy as I have to be working 9-5:30 each day. I also won the employee of the year award 4 years ago and have a cup to prove it lol.

I am though self employed because I also have other small clients and I do my tax returns and pay taxes and NIC this way.

This is a link to HMRC site and may help your friend determine if she would come under employed or self employed status where she currently works http://www.hmrc.gov.uk/employment-status/

In your friends case I am surprised that ACAS cannot give advice.

[CYNthesys]

Re: Help required for a friend please

Thanks Tuttsi, very helpful

Friend is required to work the same hours as the teaching staff, only difference is she doesnt get paid during school holidays. She even prepares all the care plans etc during the holidays depite not getting paid for the hols.
If on rare occasions she is sick she is expected to telephone the school to let them know.

Im sure the childrens parents who pay an arm and a leg in fees will be up in arms to learn that the school will no longer have a nurse on site.

[charitynjw]

Re: Help required for a friend please

Thanks Tuttsi, very helpful

Friend is required to work the same hours as the teaching staff, only difference is she doesnt get paid during school holidays. She even prepares all the care plans etc during the holidays depite not getting paid for the hols.
If on rare occasions she is sick she is expected to telephone the school to let them know.

Which will go to the 'integration' part of the test.

[CYNthesys]

Re: Help required for a friend please

Ive passed on all replies to my friend and suggested that she join LB, but her head is in tatters at the moment.
In the meantime Ive done a little digging, Ive accessed the schools website and all staff including my friend are shown by their names and occupations within the school

[TUTTSI]

Re: Help required for a friend please

Well there you go, they treated her as staff as they have listed her as so on their website and bet she had to work the hours that they require her to do so. x

Ive passed on all replies to my friend and suggested that she join LB, but her head is in tatters at the moment.
In the meantime Ive done a little digging, Ive accessed the schools website and all staff including my friend are shown by their names and occupations within the school

[charitynjw]

Re: Help required for a friend please

Maybe a quick chat with an employment solicitor might be the way forward.

You could try this lot http://www.qualitysolicitors.com/howlettclarke

Seems they employ some dubious characters, though! http://www.legalbeagles.info/forums/...itigation-Team

:whistle:

[smileyculture]

Re: Help required for a friend please

Firstly ,this is a very common position your friend is in. Many HR believe that by employing someone as self employed, they do not have any rights.


ACAS were correct in they cannot help but I am surprised they did not offer any other advice. What they should have done, was to refer your friend to the HMRC website and fill in a status indicator test. This should be your starting point. Once you have the results, this will give a good indication of the status. They have 3 months to file a claim in ET but they also have the option of the County Court. In their position I would go the ET route.

Just reading what is posted, they have an excellent chance of being an employee. It may also pay to contact HMRC and report this, as they have a very big dislike to authority's and companies trying to get around the NI and Tax issues.

Finding a good employment solicitor is however, the hardest part. Ask around and look for referrals of people who have used someone they found to be good.

Your friend has to get their head around this and fast as they will be the real losers if they do nothing because their head is in tatters. Sorry to be blunt but life is not always straight forward, but theres lots of people out there who are willing to help in any way they can.

[CYNthesys]

Re: Help required for a friend please

I came across this employment status calculator on HMRC website

After inputting all my friends details the summary concluded that she was an EMPLOYEE
http://www.hmrc.gov.uk/calcs/esi.htm

[TUTTSI]

Re: Help required for a friend please

I had already come to that conclusion based on the facts, it worked for me fortunately several years ago and I am sure it will work for your friend. That's a cool calculator - with thanks to HMRC.

Now it is persuading your friend that she has a good case for fighting the reduced hours as an employee and if needs be she should seek the help of an employment professional that can help her achieve this unless she is confident that she can deal with this herself.

I came across this employment status calculator on HMRC website

After inputting all my friends details the summary concluded that she was an EMPLOYEE
http://www.hmrc.gov.uk/calcs/esi.htm

[CYNthesys]

Re: Help required for a friend please

Thanks Tuttsi
Ive urged her not to take this sitting down and to seek assistance from an employment law solicitor