[Closed] any employment lawyers here? Will I win?

What’s in writing? I work for in recruitment and something doesn’t make sense to me. The agency will have issued paperwork and that will have your pay rate on it, so that’s your start point, irreverent of who said what. Also, the manager at the firm is confusing things as what he pays the agency is never what the candidate gets, so unless his firm has a set agreement (agency pays the candidate 85% of what the firm pays the agency for instance) he will have no say on your pay.

Also, can you go to employment tribunal with under 2 years service? I presume you’re taking legal advise as this is the first thing they’d check.

My instinct is that you’ll struggle to win, but I also think I’m short of enough info to say that for sure.

I have an email to say 'grgrgr may have mentioned a pay rate of £10.50 an hour but by paying you through the third party we can increase it to £11 per hour, and Quest only charge £10 per week from your payment so it works out more beneficial to you '
Thats about all I got from the agency
although the manager was annoyed about the situation, promised to sort it, and didn't get back to me to say otherwise
I only worked there 10 weeks and yes it is going to the tribunal

although the manager was annoyed about the situation, promised to sort it

Unfortunately, he isn’t in a position to be able to sort anything, and anything he said is pretty irrelevant at a tribunal.

He (or the company he works for) is a client of the agency only, and not your employer. His promises or expectations are not part of your contract.

There is a lack of detail as to your contract with the agency (or any written agreements) but that is really the only thing that will be taken into account at tribunal.

OK, so they’re offering £10.50 PAYE or £11 umbrella? How have the umbrella got it down to £9? £10 per week of fees isn’t unreasonable, are they deducting holiday from that as well?
Again, what have you got in writing from the umbrella? Strictly speaking, they are your employer in this case.

Not a case I would like to take on at all.

IMNO opinion, £1k isn't worth the grief.

"The Respondent’s lawyer reckons ... continued working there ... excepted ... reasonable chance of success ...costs ...sort it out. I needed to have an income"

My very uninformed opinion. How early did you raise the issue and how long has it taken to get this far? It's not unreasonable to continue to work whilst attempting to resolve a dispute. If both sides agree there is something to discuss then there's a case. But it's important that this was raised with the employer not the client.

The whole point of ETs is that both sides are unrepresented, costs kept low and if you do choose representation then you pay for it yourself. I think this is the other side attempting to bully you into giving up (which is, of course, a breach of the solicitors' professional code, but unprovable). That's theory, practice may well be different and depend on the chairman. What did ACAS say? What did their response to ACAS say?

Please don't take this as a comment either way on whether the case is winnable, in all honesty I don't understand your explanation of the dispute. That said you really should have some contracts and letters to back (or not) up your argument - especially around travel expenses that would go some way to answering the question.

"Strictly speaking, they are your employer in this case."

I suspect that nobody involved wants this point testing, hence the attempt to kill this off.

Please don’t take this as a comment either way on whether the case is winnable, in all honesty I don’t understand your explanation of the dispute.

Actually I think that is exactly why it is unlikely to be winnable! It’s difficult to stand up in a court room and clearly and succinctly present your case, know which bits of evidence will be required and when, and how you would prove something like this. That’s why we pay lawyers reasonably good money to do it for us.

Of course, the other side may well be having a conversation amongst themselves along the lines of “just pay him a grand or we risk being left with 2.5k legal bill”.

On the point of costs. I was sacked in March after a disagreement with my employer. Union lawyer looked at case and said it wasn't strong enough for them to take on. In the very comprehensive letter he sent with his opinion he mentioned that while I was free to take it to tribunal myself I could be liable for costs if it was found I,d taken a no hope case there.
No hope is paraphrasing his words.
As a part time employee the claim I was looking at was £5. Max. So I've dropped it.
Enjoyed much cycling in the great weather this spring and offered better paying job last Friday. So alls well that ends well.
I,d be wary of a possible £1 upside versus a £2.5k downside.
At the point my lawyer advised on possible costs he had no skin in the game and is presumably familiar with tribunal procedures.

You're going to a tribunal hoping to get £1k and, I guess, costs awarded.
You're exposed to the other side's costs if unsuccessful.
You haven't said if you have legal representation so let's say you don't.
I'm sure it's difficult for you and you believe you've been unfairly treated.
Would the company manager you refer to provide an independent witness statement to support your case - or be prepared to attend the tribunal?
You need witnesses and evidence.
To summarise - you want £1k but are exposed to, as yet, unknown legal costs if you lose....possibly £2.5k.
My view? On the balance of probability forget it.

" and, I guess, costs awarded.
You’re exposed to the other side’s costs if unsuccessful."

It's an ET. The presumption is that costs will not be awarded either way. Only in exceptional circumstances - adjournment due to the employer messing up, a vexatious claim or one that "had no reasonable prospect of success". This is to deter people from abusing the system.

What you need an experienced lawyer for is to answer is whether the last one of those applies (for example because it's the wrong respondent). Although since the parties aren't supposed to use lawyers then there shouldn't be any experienced lawyers...

Thanks for all your replies. I'll try to answer some points
This is the first (vague) mention of any contract- 'Can I please ask you to complete your details on the payroll system. https://www.quest-pay.co.uk/ such that we can get you set up.
I found this in an email just now-'We have to request references as part of our employment checks, as we are acting as your employer during your contract at vi' -although they do say in a later email, that the factory vi is my employer. They dont seem to know what they are talking about.

I emailed the agency a month after my first paycheck to say I was not paid what I was due, and that I'd prefer to be paid by the agency directly-who then went on to say that they could only pay me national minimum wage if they paid me themselves. Since the office was opposite the factory I had already visited a couple of times to try to get an explanation.So they claimed that it was the fault of the umbrella co.
I havent asked the manager for a statement, but I have been asked by the umbrella's lawyer to provide them with all the evidence I intend to use.Which is difficult as I havent prepared it yet and not sure what I need
The Umbrella took the £11, deducted employers tax, employers NI, my tax, my NI, pension and holidays, ended up equivalent to£9 gross

I don't understand what you mean-why is the £9 gross when all your deductions have already been paid?

Yep £9 an hour after deductions sounds ok? When people day £10.50 an hour they surely mean before deductions?

I really do not see what your issue is. YOu got paid after deductions from the correct gross amount. so you ended up with the correct net amount.

For example if I was paid £10.50 gross, 50hrs =£525. takehome -£425 approx
£9hr gross, 50hrs, takehome is £374 approx.
So if my takehome pay is £374, thats equivalent to just £9hr

I don't think your sums are right.

So what did you receive - £9 an hour? FWIW I pay 1/3 of my salery in stoppages for a similar gross amount so your 525 pw would be more like 350 after stoppages not 425 I think ( but have not done the sums)

edit - I am confused as well 😉

So are you saying that the agency are paying you £11 an hour, which goes to the umbrella and the umbrella is taking £2 an hour for its services, rather than the £10 a week you were told that they were going to charge you, and then taking your taxes out of the£9 remaining?

vinnyeh- yes basically thats how it works out
I took the figures from an online salary calculator, and it all adds up

It sounds like you need to have a look at your payslip to see what deductions you are paying.

your £525 gross * 0.7 (to account for basic rate tax & NI) is £367.50. On that basis of the numbers you've supplied what the umbrella co is paying you seems broadly accurate.

This obviously doesn't account for any pension/SIPP deductions, holiday pay or student loan repayments

Umbrella rates are subject to 4 deductions.
Employers ni
Holiday pay

Then

Employee ni
Income tax

Then you pay the umbrella company 10 per week to process.

You can claim.some tax relief on your expenses, but not home to work travel.

Agency rates are always quoted the top figure, unless specifically stating PAYE as it is what you would pay a limited company contractor.

At the top of the contract it says 'PAYE Employment Contract'
I had never taken the rates to be anything but PAYE before(and was not asked ifI was LTD)
And no way would I work there in a skilled job /like that for £9hr flat rate for 50hrs, 30 miles each way evry day

Most people don't realise employers ni exists. Everyone who is employed is subject to this. Its a hidden cost which most perm people dont see before they get paid.

Also the holiday pay is either given to you as paid holidays or if you work less than 47 weeks in a lump sum (which is subject to income tax and employee ni)

You just cannot get away from the tax unless you go ltd and do funky stuff with paying yourself min wage.

When I worked for an umbrella company, the hourly rate I was 'paid' had dedcutions for their NI contributions and my holiday pay which they had to save up so I could be paid for holidays! To the average person reading the wage slip it looks like a straight up scam!

You seriously need to get some proper advice or this going to cost you, you're going to a tribunal with no understanding of what you're after or what you are entitled to.

The Umbrella took the £11, deducted employers tax, employers NI, my tax, my NI, pension and holidays, ended up equivalent to£9 gross

This seems broadly reasonably, nothing out of the ordinary here at all.

At the top of the contract it says ‘PAYE Employment Contract’

Again, this is normal, you’re being paid PAYE by the umbrella, hence the above deductions.

I’m really struggling to see how you think you’ve been hard done by here, nothing said so far seems unreasonable at all. I think you’re into a money wasting exercise if you go to tribunal imo.

The Umbrella took the £11, deducted employers tax, employers NI, my tax, my NI, pension and holidays, ended up equivalent to£9 gross

This seems broadly reasonably, nothing out of the ordinary here at all.

Apart from this isn't what was agreed (at least in ths op's assesment) The OP was promised £10.50 gross in his pay packet. Obviously he'd have NI and tax to pay. But what he got was £9 gross and had NI and tax to pay on that. Perhaps it was all a genuine misunderstanding, but I certainly understand the OP's claim. Whether or not it's winnable at tribunal or even worth trying I have no idea.

The OP was promised £10.50 gross in his pay packet. Obviously he’d have NI and tax to pay. But what he got was £9 gross and had NI and tax to pay on that

He's got £11 gross by going through an umbrella.

The Umbrella took the £11, deducted employers tax, employers NI, my tax, my NI, pension and holidays, ended up equivalent to £9 gross

I don't get the word "gross" at the end of this sentence. Surely that is £9 net as it's after deductions? Which is why i don't think that's an unreasonable number.

Do you have a payslip with deductions on it? That'll help people work out if you are being screwed or not here.

I thought this looked familiar:

https://singletrackmag.com/forum/topic/umbrella-company-and-agency-scam-what-can-i-do/

Like Drac said, you really need to get some professional advice here, because personally I think you are on a hiding to nothing.

Seconding Drac. I don’t foresee a happy ending here.

You need to practice explaining the issue and why it’s not been as per your contract.

Once you’ve got this you may have a chance.

Based on this and the previous thread you haven't managed to explain to the STW readers

a) what you expected
b) what was done
c) how these two things differ
d) how any difference has left you out of pocket

in a way that people can grasp and give you advice around.

Maybe if you did some worked and specific examples for a, b, c and d it would help everyone?

I think people are trying to help but they're struggling and therefore don't think that you are ready for a tribunal - particularly if the other parties lawyers are asking for info that you cannot provide.

You need to practice explaining the issue and why it’s not been as per your contract.

+1

If you can't convince people here who are trying to help you but cant see through what your saying to get to the point. Then you don't stand a chance when someone is arguing against you.

It sounds like there's been a misunderstanding between you and the agency as to whether the £11 was paye or via an umbarella. Just because you didn't know that an umbarella would mean you pay employers ni doesn't mean it's wrong (afaik thats how umbarella always work).

As for being Ltd or not, the whole point of being in an umbarella is you don't need to be a Ltd company. It's a trade off between tax savings and admin and other costs.

Once you’ve got this you may have a chance.

IANAL get proper advice and listen to it. But I'm not convinced you have anything other than a misunderstanding about what you would be paid.

And........

Don't you have to pay to go to tribunal now?

Take this in a constructive way, but you really need to get to grips with what your talking about, sort out whatever evidence you have and make sure it definitely proves your case. If there's any doubt then their argument is going to drive a truck through it!

IF there is any chance of you being liable for costs I would walk away. The risk / reward ratio here is all wrong.

Actually, a simple resolve is to speak with HMRC. They are really helpful in these matters at a) explaining it all and b) identifying issues c) clarifying actual tax liabilities

As for a tribunal, based on what you have presented here I personally wouldn't proceed further.

You were offered £11 an hour through an Umbrella and accepted it.

Umbrella PAYE Calculators are freely available: https://www.contractorumbrella.com/resource/umbrella-paye-calculator/

Which is roughly equivalent tot the take home pay from £9 per hour gross as an employee.

From his point of view he thought he was getting the £10.50 per hour, but because of the umbrella arrangement is earning £9 per hour gross.

The extra 50p is covering the umbrella "fees" but the OP is paying Employers NI out of his own pocket.

Good explanation slackboy. I guess the op didn't realise he'd be liable for the employer's NI contribution. But if he'd been told he wouldn't he's got a reasonable claim. Proving the claim is another thing.
But this whole umbrella stuff is massively wrong, vunerable workers having to pay employee and employers NI should be called out for the racket it is and made illegal.

Agreeing with everyone else, you need to show why you thought you'd be being taken on as an employee at the higher rate, if that's your argument. If the agency advertised an employee position at a salary then it's different to advertising an hourly rate and separately advertising an umbrella option. But like everyone else I'm not comfortable.

If you have been working 50 hour weeks for over 9 months for the same client then, in my book, you look a lot like an employee of that client and should be entitled to employment rights like any other employee (sick pay, pension) and of course the employer would be liable for the employer's NI. But this is a massively complex area with a large and growing body of case law which I don't understand. And the client isn't your respondent anyway.

I doubt you'd win a tribunal based on the evidence.

Is it unfair? Yes.

Have they breached their contract with you? Unlikely.

You've basically been suckered, but you did accept the original contract terms and continued working there for 9 months on those terms. The fact that those terms and the employment arrangement led to you recieving less than you expected isn't really something the tribunal can remedy.

The OP only worked there for 10 weeks it's a lot of stress and hassle for something that's not going to stand, I'm amazed it has got this far.

It’s a lot of stress and hassle for something that’s not going to stand

Quite.

I get the, "but I thought" part, and it really sucks being pissed about on money, but here is Quest's PAYE Employment Contract:

6.5. The Company shall be entitled to make the necessary legal deductions from the
Remuneration for both the Employee and the Company as required by UK and/or
foreign tax and social security authorities

2.10. In the event the Employee commences the Services without signing the Agreement
then the Employee will be deemed to have accepted the terms of this Agreement.

5. Warranty
The Employee warrants that he:
5.1. has read and understood this Agreement, and

deleted - i went off on a tangent about umbrella companies

If the OP thought that he/she was working for the agency and not Quest then Quest's terms aren't really relevant. You can't arbitrarily contract with someone without their knowledge (with the notable exception of car parking). Although you'd have thought that a payslip would have raised alarm bells. Perhaps it did. Remember the OP's case is against the agency not Quest.

as skids says,' he hourly rate I was ‘paid’ had dedcutions for their NI contributions and my holiday pay which they had to save up so I could be paid for holidays!', but they said they had already paid holidays
I think the basis is firly obvious- I was promised £10.50 PAYE, was paid much less, , and I want my £1000

alric - as someone else has said if we who want to help cannot understand your case then I think you will really struggle to get a result at tribunal.

From what info you have given us it looks to me like you did get a gross of £10.50 an hour - its just the deductions are more than you expected.

If you really want to win at tribunal you are going to have to get your argument much clearer

In the same circumstances I would also '...want my £1,000' but would also be acutely aware that, as a matter of fact, costs can be awarded at an employment tribunal; it's not the norm but the possibility should not be discounted.
Do you have legal representation? For 'only' £1,000 I would be surprised and would think any honest solicitor would tell you the downside doesn't justify the cost or effort.
As you appear to be intent on pursuing this you would be better off using your time to fully prepare your case - facts and whether or not the other party breached employment law are the only things that matter.
The broad consensus of replies is that you should forget it.
Tell us how it all works out.

You're an employee of the umbrella company as well, so the end client/agency can tell you whatever they want they don't directly employ you, the contract to the agency and in turn to the umbrella, its your written agreement with the umbrella company that matters.

Is it them you are taking to tribunal as they are your employeer in this instance?

Acas helpline offers free advice: https://www.gov.uk/pay-and-work-rights

Best of luck.

Thanks for all the help
A year later,with just the help of ACAS,I am no longer out of pocket(bar the hassle of pursuing these lowlife), and It didnt get to the Industrial Tribunal

Good news.