forced to work on a self employed basis and breaks deducted from wages

[bezeeboy]

hi,

i am hoping someone can help me. I have been working as a driver for the past 9 months with the same company. Recently the boss more or less forced the drivers to work on a self employed basis, the reason given that there would be no work for any drivers working on an agency basis. like many at the moment i could not afford to not have an income. so reluctantly agreed.

Is this constructive dismissal??

 

Also they are deducting half an hours wages for breaks. regardless if taken or not. im not a commercial driver so no legislation exists on working hours. If im self employed can breaks legally be deducted.

hope someone can help!!

[honeybee13]

Hello there and welcome to CAG.

 

I'm sure the guys will be able to help you when they arrive on the forum. Please bear with us until they're able to turn up.

 

My best, HB

[andydd]

Did you have an original contract, obviously going from being paid by an agency to being self employed is quite a change. How are you now getting paid ?. Normally being self employed you either use an umrella company or you have a Ltd company setup yourself, you then sort out all the tax, etc issues yourself, which canm be very benificial as you (and the employer) pay less tax however there are lots of rules about this and can be quite complex.

 

Andy

[bezeeboy]

Hi. i was employed by the agency. The people who own the agency owned the company i drive for. (tax fiddle maybe??) i worked for them for 8 months straight. Im led to beleive if you work for the same company for 13 weeks continuous. you have same rights as a direct employee. To answer your question though. I now invoice the company for hours worked each week and i am then paid fortnightly direct to my account.

[andydd]

Generally though I thought if you were self employed then an agency cant pay you directly by law, that it why many 'umbrella' companies exist or you yoursel;f have to setup a limited company, whenever Ive done self employed work, they dont pay me directly, ive used umbrella company or my brothers ltd company he set up for that very reason.

 

How is the tax and NI calculated ?

 

Andy

[bezeeboy]

The agency is no longer paying me. the company i was working for via the agency is. i just invoice them. i only started self emp 2 weeks ago so i now have to pay my own ni and tax. I feel that we have been held to ransom really.

[andydd]

Well..I would of thought it was a new contract really but no dont really know if they can 'finish' your old one like they did, really its as if a new contract has started, still being self employed is normally a benefit, you can pay less Tax, less Ni plus can offset expenses such as travel and food against tax.

 

Id check its legal for them to pay you directly though, I was under the impression that YOU had to set up a Ltd Company and then payments would go to that company.

 

There are rather complex IR35 rules that apply (basically to stop people using it as loophole to pay less tax).

 

You must also tell the HMRC you are self employed they then send you the info. at tax return time.

 

Being self employed can be a bit of a hassle so normally youd be paid a few quid more than you would normally (you are also saving the employer money !).

 

Andy

[Offkey81]

You need a years service for constructive dismissal and also need to be an employee and have to resign.

 

Secondly, the agency worker regs state that you get the same rights to pay and holiday after 12 weeks but it shouldn't help you either. Also, those weeks only start running from 1st October so you havent completed them yet.

 

The agency are probably doing this to avoid the regulations (maybe fairly). do other people work there doing the same job but on better rates?

 

Further, being called self employed and invoicing doesn't make you self employed, there was an horizon or panorama show on a few weeks ago that explained this simply and very well - should be able to find it on iplayer - if you want a better explanation just ask but it ma not help with your current query.

Edited December 15, 2011 by Offkey81
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