Self Employed but think I should be a contracted employee

[Heartburn]

Hi everyone,

 

 

Can anyone help me to quote the right legislation to the Employment Tribunal?

 

 

I am asking the ET to confirm that I should be administered as an employee rather than self employed. I am paid the same rate per hour as the employees but they get statutory holiday pay and SSP.

 

 

We all do the same job and report to the same manager. The only difference is the way we are paid. Would there be some claim under the equal pay provisions?

 

 

I would like the ET to confirm that I am an employee and I would really like backdated holiday pay! Can I claim that and if so can I claim it from the start of my self employment with them?

 

 

Very many thanks!

[Emmzzi]

On what grounds do you think you are an employee? This page may help..

 

https://www.gov.uk/employment-status/employee

[Heartburn]

Hi Emmzzi,

 

 

I have seen that page but I thought we have to quote some law when we speak to a Judge, I'm representing myself! I'm pretty sure I am an employee as I have had fixed hours for over two years, just like the contracted employees. It's a bit messy, I seen about five different contracts for the same job role, some haven't even been updated since this company took over from the last one over 10 years ago!

 

 

Thank you again

[Emmzzi]

employment rights act 1996

 

http://www.thompsons.law.co.uk/ltext/l1520004.htm

 

Hwever going through the checklist and giving examples of each thing you think makes you an employee is a great start....

[honeybee13]

Emmzzi, I think the government website has a page on how to know if you're employed or self-employed. Would that be helpful here as supplementary information, do you think? I don't want to complicate things, thought I'd ask.

 

HB

[Emmzzi]

I think it'd be most useful HB if you have a link handy; remembering self employed can be diffeently defined for HMRC and Employment Tribunals, which does not help!

[honeybee13]

This is the one I was thinking of, Emmzzi.

 

https://www.gov.uk/government/collections/employed-or-self-employed

 

HB

[becky2585]

Hi everyone,

 

 

Can anyone help me to quote the right legislation to the Employment Tribunal?

 

 

I am asking the ET to confirm that I should be administered as an employee rather than self employed. I am paid the same rate per hour as the employees but they get statutory holiday pay and SSP.

 

 

We all do the same job and report to the same manager. The only difference is the way we are paid. Would there be some claim under the equal pay provisions?

 

 

I would like the ET to confirm that I am an employee and I would really like backdated holiday pay! Can I claim that and if so can I claim it from the start of my self employment with them?

 

 

Very many thanks!

 

Hi there

 

There is no claim under the Equal Pay provisions under the Equality Act because that would have to be based on your gender.

 

The Tribunal doesn't have the power to make your employer change your employment status.

 

You would have to be bringing a substantive claim against your "employer" for the ET to have the power to determine your employment status - for example by claiming backdated holiday pay. Usually the first thing they check is the written contract, so unless there are significant factors pointing towards employee status, it might be an uphill climb.

[ericsbrother]

Your substantive claim would be your holidy pay.

For you to be self employed at a place of business there must be certain decisons you can make and certain things the employer doesnt provide. Without knowing what business sector you are working in it is difficult to give examples but things such as the tools necessary for you to do the job, decisions on hours worked, fixed place of work etc.

The trickiest area to determine employment status is something like software development, where the employer usually takes on staff to work on projects or contracts and relies on them winning new contracts to keep the people employed and syas that the hours and duties are as required to finish the project.

[Heartburn]

Hi everyone, wow thank you all so much, I have so much more to dig into now Thanks again!

[Heartburn]

Oh one more thing sorry, I have been reviewing my file with letters that I had received from the employer I am in dispute with. They had said I cannot be an employee as they do not have an obligation to pay me (whether or not the work was provided). What exactly does that mean?

 

 

Incidentally, do people on zero hour contracts get holiday pay?

 

 

Many thanks!

[becky2585]

Oh one more thing sorry, I have been reviewing my file with letters that I had received from the employer I am in dispute with. They had said I cannot be an employee as they do not have an obligation to pay me (whether or not the work was provided). What exactly does that mean?

 

 

Incidentally, do people on zero hour contracts get holiday pay?

 

 

Many thanks!

 

Essentially what they are denying there is mutuality of obligation, which is a fundamental requirement for an employment contract. No obligation to accept or provide work or pay will point towards a self employment relationship.

 

Zero hours workers do accrue holiday pay in line with hours worked, yes.

[ericsbrother]

give us a better idea of the sector you work in and it will be easier to offer advice. The obligation to pay is a bit odd, even if self-employed there is an obligation to pay for the work done and you are free to negotiate the amount so if you get paid the same as others that it a further indication of employment.

Also, do they pay you net pay-ie deduct NI and tax? If yes then you are employed (there are provisions in the case of contract staff for HMRC to use PAYE and adjust after the event but your NI contributions will be a different class class 2 or 4). Ask HMRC about the NI contribution class you are paying and that will tell you something. A lot of these SE claims are just an unlawful evasion of NI contyributions

[Heartburn]

Thank you all very much, in answer to your question, I am a fitness instructor in the leisure industry. The employer had previously been the council or local authority, but it then became outsourced. I do regular classes but there are three groups of people - self employed instructors, "casual" workers and those which have protected status through fixed hour contracts to teach their classes. This information on mixed contracts and status did not emerge until recently.

 

 

Thanks again!

[Heartburn]

Hello everyone, I have an update:

 

 

I have now received a judgement from the tribunal. The tribunal held that I was not an employee within the meaning of section 230 (1) Employment Rights Act 1996. But no determination was made or indeed consideration given at the hearing (which in any event was a preliminary) as to whether I was a worker within regulation 2 (1) WTR 1998.

I assume therefore I can make a claim for the tribunal to determine whether I am a worker even though I have previously asked to tribunal to determine I was an employee.

If I were to succeed, would I still be able to claim back holiday pay from previous years?

Many thanks!

[becky2585]

I would have thought that the tribunal should have given consideration to both! It's rather odd that they didn't address that in their judgment.

 

I wouldn't issue a new claim - it could be viewed as an abuse of process. You could apply to the ET to review the decision, or appeal it based on their failure to address the worker status points.

 

Have they sent their full written reasons or only the judgment itself?

[Heartburn]

Hello Becky,

I now have the judge's reasons, but I should add that at the beginning of the hearing under my skeleton argument I had stated that "the claims for holiday pay are brought under the provisiosn of the ERA 1996 and alternativelt under the WTR 1998".

There were some discussions and the tribunal raised the matter in case the parties expected a determination as to whather I was a worker in the event of a finding that I was not employed under a contract of employment.

The respondent's representative took the view that it would not be proper or appropriate as to whether I was a worker as it was not an issue that had been identified at the preliminary hearing and the res was not in a position whether I was entitled to be treated as a worker under the exceptions relating to professions of business undertakings.

Would this change your view as to whether I can make a fresh claim as a worker to claim my holiday pay?

Thank you very much

[Heartburn]

Thank you Emmzzi for the link, I found a case: MacFarlane and anor v Glasgow City Council (2001, IRLR 7), the EAT held that just because a gymnastic instructor could arrange a replacement from a register maintained by the council, if she was unable to attend, did not mean she could not be an employee.

 

 

It is unclear what took place after the EAT ruling.

 

 

However, you may be interested to know that I think in my case, I find myself in the same position as the claimants under McFarlane. The judge's reasons stated "in the view of the tribunal, the contract did not provide for personal service: "because there existed an unfettered right to arrange cover from the pool. Without such a provision it was not a contract for personal service and therefore not a contract of employment".

 

 

I had to arrange cover from a cover list provided by my employer in the same way that the employees did in the McFarlane case. The judge in his final reasoning stated: "In the light of the finding that there was no obligation upon the claimant to provide personal services, the contract is not one of service. It is unnecessary to consider whether or not the claimant was under the control of the respondent or whether there were any other factors that were relevant to the determination of whether the contract between the parties was one of service."

 

 

It seems very interesting, maybe I should appeal in the same way as McFarlane and another did. Maybe the Council settled with them?

 

 

Thank you