The right to employee status and the right to a pay rise are this week's points of legal confusion
Who employed me?
In March 2002 I commenced work with a local authority as an agency worker. My employment was terminated in July 2004. I have been told that if you work for over two years continuously you can be regarded as being employed by the local authority and not by the agency. Is this correct?
I am afraid that the mere fact that you have worked for the local authority for over two years continuously does not mean that you automatically became an employee. It sounds to me as though the person who has advised you has muddled the issue of employment status with the question of when an employee accrues various rights. I say this because if you were an employee, after one year you would have gained the right not to be unfairly dismissed and, after two years you would have gained the right to a redundancy payment if you were dismissed by reason of redundancy.
However, as an agency temp of the local authority, there may be some cause for hope thanks to a case called Dacas vs Brook Street Bureau that recently came out of the Court of Appeal. Previous case law had suggested that if there is no express contract between you and the end user, there cannot be an employment contract. However, the Dacas case suggested that as a temporary worker you might be able to argue that you had a contract of employment with the local authority. The argument is based on there being an implied contract of employment with the local authority.
To succeed in your argument, you would have to show a number of factors that are indicative of employment status. Such factors include the degree of daily control the local authority had over you; whether you were paid directly by the local authority or by your agency; the extent to which you were integrated into the local authority's workforce; whether there was an obligation on the local authority to provide work for you; and similarly whether you were obliged to undertake the work once offered.
If you are able to show that you were an employee of the local authority, as I have said, you would be able to bring a claim for unfair dismissal if you have been dismissed unfairly. However, time is running out as such claims must be brought within three months of the termination of your employment.
Time to move on?
I was promoted in September 2001 and earn £16,500 (a paltry rise of £500 was offered when I took the promotion). I assumed that a greater pay rise would subsequently be offered but was told that as the industry had been performing so badly they could not give me a pay rise. In the meantime my manager has found the money to employ two more staff. I have also discovered that my predecessor earned £24,000 for the same job! Any advice?
I'm afraid the time to negotiate your pay rise would have been before you agreed to move roles. You are now contractually bound by what you and your employer agreed before your promotion. Your contract of employment may provide that your salary is subject to annual review but this is likely to be discretionary.
Practically speaking, aside from looking around for a job that pays you what you think you deserve, you could raise the issue with your manager and get clear performance objectives put on the table so that you and he can measure your performance and perhaps remunerate you accordingly. However, bear in mind that salary reviews can be used to communicate to an employee that it may be time to "move on" and this is perfectly legal.
Edward Goodwyn is a partner in Masons' employment group. If you have a legal query about your employment, email us at firstname.lastname@example.org