Employment Tribunal this week. All help appreciated!

[steampowered]

In cases where the 'label' was self-employment, but the reality of the Claimant was that of an employee, surely the Judge would not penalise the Claimant for paying their tax according to HMRC rules? Otherwise it would mean that one would be better off had they not paid their tax? If the company refused to give a contract, despite the conditions of employment being the same as that of an Employee, surely it is their responsibility?

 

Playing devil's advocate here, so you can be prepared for the other side's lawyers:

 

There is no such thing as paying your own tax. The law and HMRC rules are very clear that an employee's tax must be paid by his employer. You simply cannot register to pay your own tax as an employee. If you were paying your own tax, that means you completed your own tax return (as only self-employed people and a few others do). Similarly, since it is impossible to register to pay employee national insurance contributions, you must have registered to pay national insurance contributions as a self-employed person?

 

How are you going to respond to that? Did you register as self-employed with HMRC? Its not as simple as who sorts the tax, since the NI paid by self-employed people and NI paid by employed people is fundamentally different.

[insider293]

Playing devil's advocate here, so you can be prepared for the other side's lawyers:

 

There is no such thing as paying your own tax. The law and HMRC rules are very clear that an employee's tax must be paid by his employer. You simply cannot register to pay your own tax as an employee. If you were paying your own tax, that means you completed your own tax return (as only self-employed people and a few others do). Similarly, since it is impossible to register to pay employee national insurance contributions, you must have registered to pay national insurance contributions as a self-employed person?

 

How are you going to respond to that? Did you register as self-employed with HMRC? Its not as simple as who sorts the tax, since the NI paid by self-employed people and NI paid by employed people is fundamentally different.

This is my very question. Does being self-employed in relation to HMRC automatically mean that a Tribunal will rule I was not an employee? I was registered as self employed long before taking the job...but following this, I worked as an employee too at another place, finally I started working for the Respondent. I didnt register for self-employment specifically to work for the Respondent.

[steampowered]

This is my very question. Does being self-employed in relation to HMRC automatically mean that a Tribunal will rule I was not an employee? I was registered as self employed long before taking the job...but following this, I worked as an employee too at another place, finally I started working for the Respondent. I didnt register for self-employment specifically to work for the Respondent.

 

 

 

No, it does not automatically mean that a Tribunal will rule you were not an employee. But it is something you will get cross-examined on by the Respondent's lawyers. The fact that you registered for self-employment in a different context is a good response to the question.

[insider293]

One more last second Tribunal question.

 

The bonus I was due to be paid was super delayed. In the end I only got 75%(ABC) of it.

There was no due date on the contract, and after I kept chasing, some of it was finally paid. But, although I've got evidence that I did earn the extra 25%(D), they are saying it is out of time as I should have realised I wouldnt get any more when the payments A,B and C were made.

 

The emails I got just said that D has not been included.. to me thats not clear.

Also, given that I was still at the company, would it not be reasonable to try to sort it out with them first. I have emails saying they dont think D should be paid, but they will look into it.

 

My ET claim was within 3 months of my final salary, but about 4 months after the payment of ABC.

 

What would be the best argument to show it was not out of time?

[mariefab]

You should be OK as long as you can prove that you brought it to their attention that D was still owed ('properly payable') after they paid ABC.

This is because the deduction was (still) made from your final salary.

 

You use ERA 1996 s.23(3)(a)....

 

http://www.legislation.gov.uk/ukpga/1996/18/section/23

 

An example:

Employee earns £100 net per month.

Employer pays £90 in January.

Employee raises this with his employer, hopefully in writing. (Thereby raising the matter of an unauthorised deduction.)

In February employer pays £100.

We now have a series of deductions because the employee should have received £110 to rectify the unauthorised deduction.

March, April, May & June the employer pays £100. The series continues...

In July the employer pays £105.

Employee raises that a further £5 is due.

August, September & October employer pays £100.

In November employee finds another job, works his notice and leaves.

Final wages do not include the £5 deduction.

This is the last in a series of deductions.

So, the employee has 3 months from receipt of his final wages to submit a Tribunal claim for the £5 unauthorised deduction.

[insider293]

You should be OK as long as you can prove that you brought it to their attention that D was still owed ('properly payable') after they paid ABC.

This is because the deduction was (still) made from your final salary.

 

You use ERA 1996 s.23(3)(a)....

 

http://www.legislation.gov.uk/ukpga/1996/18/section/23

 

.

Cheers! btw are you an experience employment lawyer? As a backup plan, could I not also say it was not Reasonably Practical to claim earlier because I was going through the redundancy process and/or I was not aware of my rights to claim?

[mariefab]

Nope, not a lawyer.

 

Do you mean as a backup plan for your unauthorised deduction claim?

If so, you don't need one. The Tribunal will be very familiar with the application of ERA23.

You probably wouldn't even need to quote it. All you'd need to say is that the claim was submitted within 3 months of the last in the series of deductions and the Tribunal would take it from there.

[steampowered]

Threads merged, please keep to this thread as it helps those advising you to see the history.

[MrHat]

Following

[insider293]

ERA (23) - can this still be quoted if the employer at some point denied that D was payable?

In fact they did not 'deny' it fully, but explained that previous payments did not include D. And, in writing, promised to look into it.

[Pusillanimous]

Is there any clause in your employment contract that allows them to withhold 25% of your bonus? Did they explain why?

[insider293]

the contract was ambiguous.. the 25% relates to a specific portion of bonus that the boss denies was included in the deal..the point is that they claim its out of time.

[mariefab]

They say- D wasn't included with ABC and they didn't think it was payable, but they promised that they would look into it.

That suggests that they hadn't yet made a final decision as to whether, or not, to pay you D.

 

You say- D was properly payable (and explain why) and they continued to fail to pay it despite you pointing out that it was due.

 

Then you say that the failure to pay D with your final wages was the last of a series of unauthorised deductions and refer to Employment Rights Act 1996 section 23(3)(a) to show that the claim was therefore submitted, in time, within 3 months of you receiving that last payment.