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Can she claim Unfair Dismissal - and if so, against whom?
Here goes.... A friend of mine bought a small shop & worked it with her partner for nearly 2 years. Then they moved and had the shop managed by the daughter in law for the last year.
When they first bought the shop, they inherited a part time worker, who also worked full time elsewhere. This lady continued to be paid cash in hand for her 2 days a week (although a P46 was completed at the start of the new business) and was deemed to be 'self-employed'.
They did, however, pay her holiday pay as a goodwill gesture.
They have now signed the shop over totally to the daughter in law, who has decided to work the extra hours herself and dismissed the part time worker.
The part time lady now has sent a letter to my friend demanding 3 weeks pay in lieu of notice and 2 weeks holiday pay. (Holidays go from Jan to Dec each year, so she is only entitled to a few hours anyway)
Under the rules of TUPE, should this letter have been sent to the NEW employer, and is this lady self employed, or employed?
The final question being: Is this lady entitled to her 3 weeks pay? And also can the old employers question whether she has declared this income on her tax return for their records?
Sorry for such a ramble!
When they first bought the shop, they inherited a part time worker, who also worked full time elsewhere. This lady continued to be paid cash in hand for her 2 days a week (although a P46 was completed at the start of the new business) and was deemed to be 'self-employed'.
They did, however, pay her holiday pay as a goodwill gesture.
They have now signed the shop over totally to the daughter in law, who has decided to work the extra hours herself and dismissed the part time worker.
The part time lady now has sent a letter to my friend demanding 3 weeks pay in lieu of notice and 2 weeks holiday pay. (Holidays go from Jan to Dec each year, so she is only entitled to a few hours anyway)
Under the rules of TUPE, should this letter have been sent to the NEW employer, and is this lady self employed, or employed?
The final question being: Is this lady entitled to her 3 weeks pay? And also can the old employers question whether she has declared this income on her tax return for their records?
Sorry for such a ramble!
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1. She is almost certainly an employee.
2. I assume the P46 was completed to show that she had another job, and that it was sent off to HMRC. If so, it seems likely that the tax on the part time job was included in her tax code for her other job. If this was not done, then possibly HMRC could cause problems for the employer as a result of no tax being deducted.
3. Was any National Insurance deducted, or was the pay too low for this to apply?
4. If she is an employee and has been dismissed without notice then she is entitled to pay in lieu. This would be 1 week's pay for each complete year's service.
5. She has been dismissed by the new employer. I think it is that person who should pay her as she took over the liability when she took over the business.
2. I assume the P46 was completed to show that she had another job, and that it was sent off to HMRC. If so, it seems likely that the tax on the part time job was included in her tax code for her other job. If this was not done, then possibly HMRC could cause problems for the employer as a result of no tax being deducted.
3. Was any National Insurance deducted, or was the pay too low for this to apply?
4. If she is an employee and has been dismissed without notice then she is entitled to pay in lieu. This would be 1 week's pay for each complete year's service.
5. She has been dismissed by the new employer. I think it is that person who should pay her as she took over the liability when she took over the business.
If that is all she is looking for, it might be advisable to pay it as your daughter in law runs the risk of an Employment Tribunal claim landing on her doorstep.
The only true " self employed" people now are the owners of building firms and other such people who run their own businesses ( eg your daughter in law) and freelance workers who submit invoices under a contract for service.
I also suggest your daughter in law contacts the Acas Helpline on 08567 47 47 47 and look at www.acas.org.uk to see if there are any training courses being run in her area that she might like to attend, especially if she intends to employ some more staff
The only true " self employed" people now are the owners of building firms and other such people who run their own businesses ( eg your daughter in law) and freelance workers who submit invoices under a contract for service.
I also suggest your daughter in law contacts the Acas Helpline on 08567 47 47 47 and look at www.acas.org.uk to see if there are any training courses being run in her area that she might like to attend, especially if she intends to employ some more staff
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