partner laid off from zero hours contract, any ri...

[Russe11]

Originally Posted by SarEl

Just to clarify - HMRC do not and have never ruled on employment status. That is the jurisdiction of an employment tribunal, not HMRC. It is perfectly possible for HMRC and a tribunal to come to opposite conclusions on matters - the only one that matters in legal terms is the conclusion drawn by a tribunal. Otherwise I would agree with zzzLazyDaisy that the only way to accurately assess whether the employer has strayed beyond the terms of a zero hours contract is to (a) get legal advice and (b) submit a tribunal claim to that effect. Until a tribunal says otherwise, it is what it is....

By the way Daisy - the OP isn't off sick, that was just another one of those diversions we went around!!!

interesting, so when HMRC says my selfemployment contract should infact be employed and the employer should be paying PAYE tax and NI and I should recieve holiday entitlement, means absolutly nothing?

[SarEl]

Originally Posted by Russe11

interesting, so when HMRC says my selfemployment contract should infact be employed and the employer should be paying PAYE tax and NI and I should recieve holiday entitlement, means absolutly nothing?

No - it means that that's the opinion of the HMRC! And that is all it is. HMRC have the jurisdiction to determine whether you are self-employed for tax purposes only. They cannot determine your employment status, and frankly, I doubt they would be able to. As you have already seen, there is not a single "employment status" anyway - they could not determine whether you are a worker or an employee. That is up to a tribunal. That said, although it isn't an everyday occurence, it is possible to be "employed" for tax purposes and "self-employed" as a legal status - and of course, umbrella companies deliberately skirt this line between the two.

[Russe11]

Originally Posted by SarEl

No - it means that that's the opinion of the HMRC! And that is all it is. HMRC have the jurisdiction to determine whether you are self-employed for tax purposes only. They cannot determine your employment status, and frankly, I doubt they would be able to. As you have already seen, there is not a single "employment status" anyway - they could not determine whether you are a worker or an employee. That is up to a tribunal. That said, although it isn't an everyday occurence, it is possible to be "employed" for tax purposes and "self-employed" as a legal status - and of course, umbrella companies deliberately skirt this line between the two.

Quite, exactly the case when I have had to take action against umbrella companies, i've never really been a 100% which line to take, i've always gone for that which is most favorable finacially to myself, but thats been through the courts and never a tribunal service.

[getmore4less]

Remember that is not just the written terms but what happens in practice.

One test is the ability to turn down the offers of work.

how is work offered do you have a chance to turn offers down or get asked when you will be available in advance.

Allthough in practice this may not be so easy if the employer has enough workers and can just stop using you.

I have seen some contract written as recuring short term, making each period of work a seperete contract.

Also the sensible employer make sure there is at least a week(sat-sat) where no work and no pay is given breaking any continuity of employment.

[SarEl]

Originally Posted by getmore4less

Remember that is not just the written terms but what happens in practice.

One test is the ability to turn down the offers of work.

how is work offered do you have a chance to turn offers down or get asked when you will be available in advance.

Allthough in practice this may not be so easy if the employer has enough workers and can just stop using you.

I have seen some contract written as recuring short term, making each period of work a seperete contract.

Also the sensible employer make sure there is at least a week(sat-sat) where no work and no pay is given breaking any continuity of employment.

True - although even the two last tricks don't always work - there is significant case law (significantly more than there is on zero hour contracts) on recurring contracts and longer breaks than the week, where continuity of employment has been established. In one very famous case against, if I recall correctly (it's an awful long time since I read it) over a two months break between contracts.

The major reason for the disparity in establishing a body of law around zero hour contracts is that few such workers are unionised - even if they fight the employer to tribunal (which they seldom do) they cannot generally afford the costs to argue to EAT or higher. and of course only the higher courts can form case law. This is in direct comparison with most other types of workers - legislative change around part-time contracts, variable hour contracts, fixed term contracts etc., has largely been driven by stunning higher court judgmenets that have shot holes in employers ability to use these staff as they wish. I am sure that zzzLazyDaisy will recall the bad old days when fixed term workers got no redundancy pay etc.

Without that case law in volumes, nothing will ever change. There is no incentive for it to. The losses on making a mistake and straying into an employment relationship are minor compared to the benefits to employers. Only when it costs them more than they are willing to risk will they decide that these contracts have no benefit to them.

[zzzLazyDaisy]

Originally Posted by SarEl

True - although even the two last tricks don't always work - there is significant case law (significantly more than there is on zero hour contracts) on recurring contracts and longer breaks than the week, where continuity of employment has been established. In one very famous case against, if I recall correctly (it's an awful long time since I read it) over a two months break between contracts.

There was a very recent EAT case, where the employee had left one branch of the business, applied to a different branch of the same employer, got the job, some weeks later and successfully claimed continuity of employment. If I can put my hand on it I will post it. But really it just goes to show that nothing is as definite as it might seem!

[SarEl]

Originally Posted by zzzLazyDaisy

There was a very recent EAT case, where the employee had left one branch of the business, applied to a different branch of the same employer, got the job, some weeks later and successfully claimed continuity of employment. If I can put my hand on it I will post it. But really it just goes to show that nothing is as definite as it might seem!

Yes - ain't case law wonderful? I bet you will recall the case I mentioned about the two months break in employment every year. It was a famous confectioners based at the time with HQ in Halifax! To be honest I loved the ruling - I just never actually understood quite how they got there!!!

But therein lies the problem with case law - it can sometimes be as perverse as tribunal rulings and depending on it is liking standing on quicksand.

[flashnazia]

Rant alert!

I just want to say, I think zero hours contracts are EVIL (the ones where the employer dictates all but the employee can't refuse work).

I've heard some nasty cases of NMW employees spending what little they have to get to work only to be sent away with 'sorry love, no work today'.
Grrr.

[SarEl]

Originally Posted by flashnazia

Rant alert!

I just want to say, I think zero hours contracts are EVIL (the ones where the employer dictates all but the employee can't refuse work).

I've heard some nasty cases of NMW employees spending what little they have to get to work only to be sent away with 'sorry love, no work today'.
Grrr.

Whilst I agree with you in principle - zero hours contracts are the ones were the worker (who is not an employee) actually is able to refuse the work. If they can't refuse to work then it isn't a zero hours contract!

[flashnazia]

Originally Posted by SarEl

Whilst I agree with you in principle - zero hours contracts are the ones were the worker (who is not an employee) actually is able to refuse the work. If they can't refuse to work then it isn't a zero hours contract!

I wasn't aware of that; where I work we usually refer to what you term as zero hours as casual worker contracts.

Leading on from that, for an 'employee' on a zero hour contract who has been working a full time week for all their length of service - say, three years - I have read they cannot claim anything if they are sent home and not provided with work (where work is clearly available). Does custom and practice apply anymore because its zero hours? It's always confused me

[SarEl]

Originally Posted by flashnazia

I wasn't aware of that; where I work we usually refer to what you term as zero hours as casual worker contracts.

Leading on from that, for an 'employee' on a zero hour contract who has been working a full time week for all their length of service - say, three years - I have read they cannot claim anything if they are sent home and not provided with work (where work is clearly available). Does custom and practice apply anymore because its zero hours? It's always confused me

It confuses everyone. I can't post the link right now, but if you Google redundancyforum.co.uk , look for the Frequently Asked Questions section on that site, you will find in there a thread that explains the basic differences between contracts. Like all potted law, it's general, and therefore guidance. But it helps.

And it also tells you that casual employees are not the same as zero hours workers!

In terms of the specific question, in the end only a tribunal can decide that. Regular hours of then type you describe may lend themselves to suggest that those may not be a zero hours contract, but not necessarily. The most crucial test is the right to refuse work.

Personally I would do away with zero hours contracts. But the impetus for that is not, as I said, there.

[flashnazia]

Originally Posted by SarEl

It confuses everyone. I can't post the link right now, but if you Google redundancyforum.co.uk , look for the Frequently Asked Questions section on that site, you will find in there a thread that explains the basic differences between contracts. Like all potted law, it's general, and therefore guidance. But it helps.

And it also tells you that casual employees are not the same as zero hours workers!

In terms of the specific question, in the end only a tribunal can decide that. Regular hours of then type you describe may lend themselves to suggest that those may not be a zero hours contract, but not necessarily. The most crucial test is the right to refuse work.

Personally I would do away with zero hours contracts. But the impetus for that is not, as I said, there.

Thanks for the info; I'll have a look when I'm at work.

I agree with you about zero hours contracts. Too much potential to exploit workers.

[SarEl]

Originally Posted by flashnazia

I'll have a look when I'm at work.

I wouldn't recommend it, or you may find you are posting on here for other reasons!

[flashnazia]

Originally Posted by SarEl

I wouldn't recommend it, or you may find you are posting on here for other reasons!

It's only a redundancy forum (unless they have some other info!)

I work in an advisory capacity so it's vital I keep researching so its allowed don't worry!