Self-employed and want to go to tribunal

[Ann27]

5 years ago I began an admin job with a sole trader independent social worker (!) who urged me from the very start to register as self-employed.

 

Being naive and desperate for work, I eventually registered for self-employed status about 6 months later. I have kept up NI 2 contributions since that time and put in self-assessments at the relevant times.

 

HMRC's ESI tool says I was an employee. The job consisted of going into the office with the exception of a couple of times when he was away on holiday and I did some work from home. It was established at the beginning that I would be paid £8ph and this went up to £12 at the beginning of this year. I kept notes on my phone to document the hours I worked, for instance 09.09.2012 - 09:46-16:30. I would then tell the employer when I was owed in the region of £500 and they would have me invoice him OR his wife (with her own business) OR one of his clients who would then pay me. I got no holiday or sick pay - the days I didn't work I didn't get paid. I was plainly told that the reason for issuing invoices in this way would be to legitimately preserve my self-employed status as I would be seen to have multiple cilents.

 

3 weeks ago I was dismissed with about 12 hours notice. I've had no work (and no income) since and have none for the foreseeable future, and apparently can't claim JSA and the housing benefit situation is very complicated.

 

I'm committed to going through the tribunal route, but not sure yet whether to handle it myself or through a specialist. I understand I have 3 months following effective termination date to do this.

 

But, because it's plain that my employer has evaded both income tax and VAT by this sham arrangement, do I go straight to HMRC?

 

Am I going to have to do a self assessment before 31st Jan 2013 for my income in the tax year ending April 2012??? If my status is 'overturned' before that time I mean.

 

Any help or advice really appreciated including recommended reading.

[becky2585]

The most important factor is the degree of control they had over you - could you choose when to work, or decline work if you didn't want to work that day?

 

Was there a written contract in place?

 

If you are an employee, you could also have a significant claim for backdated holiday pay.

[fifimcr]

Hello sorry for hijacking this thread but I have also used teh ESI tool and the result states that i am an employee as I had a hogh degree of control, liek teh original thread started i was dismissed from a contract without notice, i operate through a private limited comapny and that option was given to me by the agency who ararnged this contarct for me

[becky2585]

If you had a high degree of control, that indicates you're not an employee.

[Ann27]

Thanks so much for your response.

I was expected in every day at 9am although usually showed up at 9:15 or so. A text message or email from my boss would direct me otherwise - say to come in at 12 because he had an appointment.

[Ann27]

Does anyone else have any advice or comments?

 

I must imagine there are members here who have really been employees though categorized as self-employed and have taken their employers to tribunal on this basis.

[Emmzzi]

Have you discussed with hmrc first? That'd be my first port of call. Their enforcers have big teeth.

[becky2585]

Does anyone else have any advice or comments?

 

I must imagine there are members here who have really been employees though categorized as self-employed and have taken their employers to tribunal on this basis.

 

I did have a client who successfully did this, and they also succeeded in a claim for 6 years of backdated holiday pay!

 

The problem is, it's so fact specific that it's hard to advise whether you personally would be successful.

 

One problem I can foresee in your case is your acknowledgment that the arrangement was a sham. You can't sue on an illegal contract, so that could be a huge barrier for you here.

[Ann27]

Thanks Becky, my research has suggested the same possibility and there are cases at the appeal stage ongoing at this very moment where this issue of "taint of illegality" has arisen. The thing is, I didn't choose this and it wasn't at all clear from the beginning to me that it was a sham. Look, I just did as I was told and that was it. I don't think the case automatically hits a brick wall if the illegality began with the employer and not the employee.

 

I think I'm going to get my ET1 in and leave it for the tribunal in the first instance to decide whether I was legitimately an employee or not. Then the more complicated unfair dismissal issue can be raised. Or I'll just tell HMRC the full story and let them work this out.