Reply to: Unfair termination of contract

[Boney M]

Eh?!?!?

Oops wrong thread NLUK

[northernladuk]

Thats not what he said. He said he had been told this by someone else. He was simply asking the question so see if he could use a tribunal as leverage on staying

Eh?!?!?

[Boney M]

Sorry but I bloody hate posts like this. Contractor been with the company a long time and expects the same rights as permies. It's disgraceful. Gives us all a bad name.

If you want perm rights are you going to pay HMRC all its taxes back for the two years now have proven yourself to be a disguised permie?

Thats not what he said. He said he had been told this by someone else. He was simply asking the question so see if he could use a tribunal as leverage on staying

[Vordrak]

Yes. Companies sue for negligence and libel all the time.

A disclaimer on the reference may protect the reference giver from the recipient of the reference (Hedley Byrne v Heller), but not, I believe from the person or company it is about.

[Old Greg]

Can a company sue for negligent misstatement?

For example, rather than giving a reference saying that the individual was crap, could the client get away with saying "we don't give references for individual members of supplier staff. However all contractors provided my CrapCo Ltd were as much use as a marzipan dildo so we terminated the contract" or similar?

What would Tesco do if Sainsbury's issued an inaccurate press release saying that all Tesco burgers were 100% rat meat?

[DirtyDog]

Respectfully Steve, you are mistaken. Negligent misstatement is a tort and not employment statute. If you negligently give a contractor a bad reference you can be sued. There is even an advice article on contractor uk explaining this.

Can a company sue for negligent misstatement?

For example, rather than giving a reference saying that the individual was crap, could the client get away with saying "we don't give references for individual members of supplier staff. However all contractors provided my CrapCo Ltd were as much use as a marzipan dildo so we terminated the contract" or similar?

[Vordrak]

Exactly why I shouted.

----->Yes they can.<------

Its a business to business relationship. It's no different to you complaining about any service you received from a company.

Respectfully Steve, you are mistaken. Negligent misstatement is a tort and not employment statute. If you negligently give a contractor a bad reference you can be sued. There is even an advice article on contractor uk explaining this.

http://www.contractoruk.com/jobs/bad_reference.html

I quote from the penultimate paragraph -

"[...] it is certainly possible to take matters to the courts. The Data Protection Act empowers contractors to request copies of references that have been supplied to third parties, and laws of negligence allow a case for damages to be formulated."

The concept is used and cited in employment law because often employees will want to sue, but you will notice that the cases I referred to were heard in the County Court and High Court not a tribunal. It is very close to the law you would use to sue an accountant who gave bad advice.

Negligence does not even require a contract let alone an employment relationship. You don't have a contract with the bin men, but if they negligently drive their truck into your living room and knock your house down, you will find you have some compensation coming if you sue. And no suing the driver would not bring you under IR35!

It is a bit like libel (another Tort). You don't need to have a contract with someone to sue them for libel. Negligent misstatement requires a proximate relationship. It could be a teacher giving a bad reference to a student with no contract at all.

The advantage of negligent misstatement over libel is that there is no qualified privilege defence. The disadvantage for contractors (and anyone) using tort is that it is not heard in Employment Tribunal but in County Court or the High Court where loser pays costs.

[TestMangler]

Here is the story of another contractor that tried claiming unfair dimissal....

Contractor loses EAT unfair dismissal appeal :: Contractor UK

Be interesting to know if HMRC came after him after this.

That bloke was a poster on Shout99. That was a 'self initiated' anti IR35 measure.

He had been asked some 'clarification' questions by HMRC and, amazingly, it came to nothing after that.

[tarbera]

Surly case law from barbie v Cindy applies here ???

Hi all,

I have been given notice on my contract. The reason being is that my indirect manager thought I was saying bad things about her (not true) and secondly once she found out my daily rate wanted to get rid of me (jealousy cause we are the same age and she is earning a fraction of what I am earning).
So the reason she presented to me was that her boss wanted different skilled Project Managers to myself. However, I do have the skills that she said her boss wanted.
So once my stakeholders found out that I will be leaving, they emailed her manager, praising me and asking for me to stay on.
Interestingly I have been contracting with the same company for more than 2 years now. One of my stakeholders told me that because I have been with the company for more than 2 years, I receive permanent employee rights, which means i can go to tribunal.
Does anyone know how, and if I can go to tribunal for unfair dismissal?

Do you consider yourself better looking than your Boss.? surly a quick mud wrestle could settle this.?

[alluvial]

Oh dear ...

ONLY IF YOU ARE EMPLOYED -- THIS DOES NOT APPLY TO CONTRACTORS -- THIS IS A CONTRACTOR FORUM

Why shout?
He said it covers contractors as well, are you saying that just because you are a contractor that you have to accept that anyone can badmouth you?

[Zero Liability]

Were you working outside IR35? If so, don't go on about permie employment rights.

Have a read of this post, especially item 12...

Agree with this, this is just handing HMRC everything they need to know on a silver platter if operating outside IR35.

[northernladuk]

References must be fair as well as true, and the special libel defence of qualified privilege does not arise. So even if you were fired, if the allegations were untrue OR they were true but not put to you, you might have a claim. In reality even many really nasty companies will just say titles and dates. Its worth finding out from HR.

The standard advice given by legal teams is to confirm start and leaving dates and nothing more. A majority of companies will give this and nothing more, not just the nasty ones. Some companies will also refuse to give contractors references unless legally obliged to do so. not even sure they even have to do this bearing in mind he is a supplier not an employee.

[Vordrak]

I am a law student and a contractor and as they said, you do not have a right to claim 'ordinary' unfair dismissal unless you can prove you are a disguised employee, have the service period. You might be able to claim discrimination of various forms but that is not relevant in this case as you are clear that the reasons for the termination for the contract are not discrimination.

However, whilst a contract can be terminated quite easily, that is not the same as saying they can bad-mouth you. References these days attract substantial scrutiny in tort law, specifically, negligent misstatement. There is Spring v Guardian Assurance and also McKie v Swindon College [2011] . These two cases are nothing to do with employment statute or permanent employee rights and cover contractors from day one.

References must be fair as well as true, and the special libel defence of qualified privilege does not arise. So even if you were fired, if the allegations were untrue OR they were true but not put to you, you might have a claim. In reality even many really nasty companies will just say titles and dates. Its worth finding out from HR.

[DirtyDog]

Does anyone know how, and if I can go to tribunal for unfair dismissal?

If you see yourself as an employee, then go for it.

Google is your friend here - the first result for "unfair dismissal tribunal" give your the government site - https://www.gov.uk/employment-tribun...yment-tribunal

Good luck!

[Old Greg]

Sorry but I bloody hate posts like this. Contractor been with the company a long time and expects the same rights as permies. It's disgraceful. Gives us all a bad name.

If you want perm rights are you going to pay HMRC all its taxes back for the two years now have proven yourself to be a disguised permie?

No you don't. You love post like this.