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Employed by Company then made to go Self Employed. Any rights?


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I have been working for a company since 2006(since the beginning). I was employed by the company, but in August 2010 it was mutually agreed I would become a self-employed consultant of the company. This was a mutual agreement as my employer wanted the benefit of not paying PAYE, and it was 'sold' to me on the basis it would be more tax efficient for me. I was told nothing would change in the way of rights, holiday entitlement etc.

I was on a commission based salary package, which simply rolled over when my status changed to self-employed. Gradually since August 2010 my 'package' has changed for the worse, and ive not had a leg to stand on, as I dont have any of the usual employee rights, although the understanding always was I would keep these rights, and the self-employed status was merely the status on paper, but in reality I would be an employee.

Today I learnt that my boss intends to take away my holiday entitlement, on the basis that I’m self-employed and I have no right to this entitlement.

Do I have any rights as a permanent self-employed consultant?

I have been paid continuously by the company every month since 2006, and even my income states 'salary' on my bank statements. I have various emails/correspondence going self-employed which states 'salary', changes to my 'salary package' etc

Thanks for any help in advance

Edited by LeeandMel
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Hello there.

 

I expect the forum guys will be along during the day with advice for you. They've dealt with this sort of stuff before, so they should be able to help.

 

Do you have anything in writing from the company about the terms of your change of status please?

 

My best, HB

Illegitimi non carborundum

 

 

 

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Hi

 

I have various emails dating back to 2010 about the change, and then since the change took place I have a few emails/documents to my 'package' which are titled 'salary proposals' etc. I dont think i have anything that explicitly states I would keep all my rights, but I have been continuously paid on a monthly basis by this company and payment reference has always remained 'salary' on my bank statements. I also have emails booking holiday time off in the past, then full salary received etc.

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  • Even Because the agreement was by mutual consent it does not neceessarily mean that you are not classed as an employee by regulation depite what your boss may say.


  • the purpose and intention of the parties - this factor looks at the purpose of the contract and what the employer and the employee intended when they made it. It does not matter how they have described it, so that it is not the case that a worker is self-employed just because that is what the employer says s/he is, or even because s/he is paying tax as a self-employed person
  • method of pay - if a business has paid a worker regular payments of the same amount for some time, this may indicate that s/he is an employee rather than self-employed, even if the employer gives the pay some other name, for example, an honorarium. This would be particularly true if the pay was agreed each year and the worker received pay increases at regular intervals. Self-employed workers are more likely to be paid per job, and so would not receive regular pay, unless the pay for the job was made in instalments
  • whether the worker is integrated into the organisation - this factor looks at the degree of integration of a worker into an employer's organisation. Is the work done by the worker an integral part of the business (suggesting s/he is an employee), or is it work done in addition to the business but which is not integrated into it (suggesting a self-employed worker under a contract for services) (endnote 3). It is measured by the tribunal asking 'would any ordinary person say that this worker was part and parcel of the organisation?'.
  • whether the worker works only for that organisation - this factor measures how independent the worker is of the employer's organisation and whether s/he works only for that organisation or is able to choose to work for other organisations as well. If the worker works exclusively for one organisation, this would be an indication that s/he is an employee
  • element of financial risk - if the worker has invested money into the business either directly or by buying substantial tools or machinery, or if s/he has to share or bear the profits and losses of the business or organisation for which s/he does the work, s/he is likely to be self-employed and not an employee
  • fixed hours and regular work - if the worker works fixed hours doing the same kind of work all the time, it is likely s/he is an employee. If s/he is free to decide the type of work s/he takes on and how and when s/he does it, s/he is more likely to be self-employed
  • provision of tools and equipment - if the worker does not have to provide any tools, or only has to provide a few small tools with the main tools and machinery being provided by the employer, it is likely s/he will be an employee
  • work performed at employer's premises - if the worker is based at her/his own premises and only moves to other premises to do particular jobs, s/he is likely to be self-employed, although home working is becoming more common now for employees. If s/he works at the same employer's premises all the time, s/he is more likely to be an employee
  • terms normally associated with being an employee - if the worker is entitled to sick pay, is eligible for membership of a pension scheme and/or is subject to a disciplinary and grievance procedure, this all suggests that the worker is an employee. However, as with other factors, it is not conclusive on its own, since some of these entitlements may also be offered to non-employees.

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Thanks for this very useful. I think after doing my research I am definitely classed as a 'worker' of the company thereore entitled to many of the same rights as a employee such as holiday pay.

 

I only work for one company, and have continuously worked for this company since going self employed in July 2010 so I think my status is very clear.

 

What im not so clear on is my rights in regards to my pay and pay structure e.g. can this just be changed without any notice or consultation?

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Hi. Thanks for this. very useful indeed. I think by all counts I am an employee but simply file/pay my own taxes. May I ask where you got this information? You refer in point 4 to a tribunal? Is this is an employment tribunal? I am looking to explore my rights as I have been pushed around now for some time, and this latest suggestion that im no longer entitled to holiday pay has really rattled me. Could I pursue the route of constructive dismisall, or is this well and truly only open to true employees?

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The information refers to Employment Tribunal.

 

Without giving too much away, I do it for a living although I have not done employment for a couple of years . I would suggest that you speak to ACAS, Law at Work or your Local CAB who will assist free of charge.

 

If you are considering a claim for Constuctive Dismissal do not leave without seeking advice as it can be difficult to prove CD.

I hope this information is of assistance

Edited by Crocdoc
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I have my original contract dated 7th Jan 2007. This is when I was employed. I have no official self employed contract, but i started self employment on 30th JUly 2010, and have plenty of emails confirming this and the change over etc. I pay my own NI/Tax as I file my own tax returns, but the accountant that does it is the firms accountant and its all done 'in house'.

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Well, there's probably no definitive answer on this one I'm afraid. If the arrangement is mutual self employment then there isn't much you can do, so you're hedging your bets on being an employee/worker.

 

Who controls the hours you work, and what you do - can you choose? Why did you go "self employed" in the first place?

 

You could take a shot at the tribunal for the holiday pay claim - but it's a very complex area of law, so i would recommend taking advice from a solicitor.

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I have set hours (monday - friday/09.00-18.30). I have no choice in this. I only work for one company.

 

The decision to go self employed was suggested by my employer as he wanted to reduce his PAYE liability, and it was sold to me on the basis it would be tax efficient for me and the company accountant would take car of everything. I have been receiving holiday entitlement since 30th July 2010, and this is now just changing.

 

Sorry to sound naive, but how would I even begin to go down the route of a tribunal?

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It sounds like you are an employee, despite the tax dodge. For example, see http://www.frettens.co.uk/site/library/legalnews/Self_employed_workers_claim_unfair_dismissal_employment_law. That said there are also cases which say once you have accepted self-employed you cannot then have it both ways by claiming you are an employee. It is something I think you would need to get proper legal advice on if you wanted to go through with bringing an Employment Tribunal claim.

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You're not naive at all, it's probably not something you've had to deal with before.

 

I do have concerns about the "tax dodge" though - you can't sue on the basis of an illegal contract, so if that's the only reason for the change, you could struggle to sue. I would strongly suggest seeing a solicitor - CABs are good for basic help, but you need detailed legal advice here!

 

A formal grievance would be the place to start though - followed by legal advice and submitting an ET1 claim form. You can do this yourself if you want, by downloading the claim form from the Tribunals website.

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As far as the law is concerned you are an employee of this company and they and possibly you are tax dodgers. In practial terms you can claim unfair dismissal, redundancy and other rights and you are likely to succeed but I very much doubt if your emplyer will be happy having to take you back on the books so you will not be there long if you assert these rights. Suggest to the company that you are employed by them and they should put you back on a proper footing or it will all come out in the wash. They will probably see that as coercion but so what, they have treated you badly. Look for another job anyway.

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