from employed to self employed

angelis16

hi
my husband returned to work after 2 week break to be told that instead of being employed all workers were now being classed as self employed,he was told on a monday by friday all workers received their p45s,his company is using a company called rock professional ltd to handle this,it states in their letters that a margin deduction will be taken out,butt it doesnt state how much,can all this be done legally with that short notice?Although his boss said he wouldnt be paying the 20 days holiday he would pay bank holidays and christmas but again there is nothing in black and white.Where do we go from here,dont know who to ask,his boss reckons we will be better off this way but at the moment cant see it.

colino

He really needs to look for a new job. You can't move from doing the exact same employment to doing it in the same way, with the same employer, under the same conditions, to, "self-employed" Further complicating it by imposing an umbrella management company inbetween will just make HMRC laugh.

InsideInsurance

If he is going through an umbrella then he isnt self employed, he is an employee of the umbrella company and contracted out to his former employer.

HMRC wouldnt have a laugh because the umbrella makes the employer NI payments etc

Ultimately they are dismissing their staff and then offering them their jobs back again but on a contractor basis with the suggestion of using a particular umbrella.

You need to deal with each part of it individually, first would be the dismissal. Depending on how long they have been there and when they joined this may simply be a matter of giving notice or it may be a case for redundancy.

Secondly there is a contractor role being offered, a discussion over hour/ day rate is expected and a new contract would need to be drawn up

Notmyrealname

How long has your husband worked there? If it has been over a year then unless they make him redundant, they would have to follow disciplinary procedure. If they make him redundant to move him on to this they have to pay redundancy pay.

...not that what they're doing is actually legal.

Uncertain

Notmyrealname wrote: »

...not that what they're doing is actually legal.

I don't see how you can be so sure based on what's posted here.

For example, making staff redundant then outsourcing their function to another organisation (who may then employ the same staff to carry it out) can be a legal redundancy situation.

zzzLazyDaisy

Uncertain wrote: »

I don't see how you can be so sure based on what's posted here.

For example, making staff redundant then outsourcing their function to another organisation (who may then employ the same staff to carry it out) can be a legal redundancy situation.

Uncertain, you normally give great advice, so much so that I often read and don't even bother commenting.

But in the situation you describe above, where one organisation outsources work to another, which continues to carry out the work in the same way as before, the employees of the first organisation would be TUPE'd across to the second one, with their continuity of service and T&Cs intact. I'd suggest that OP seek advice from a solicitor/law centre/or even ACAS (though their advice can be a bit hit and miss these days) to see if TUPE applies here.

Although the question of how long he has been employed by the company still needs to be answered as under two years and he has few legal rights anyway as the service requirement for unfair dismissal and also redundancy pay is two years, so if he has less than two years' service he may prefer to suck it and see rather than make himself unpopular and risk losing his job altogether.

Uncertain

zzzLazyDaisy wrote: »

Uncertain, you normally give great advice, so much so that I often read and don't even bother commenting.

But in the situation you describe above, where one organisation outsources work to another, which continues to carry out the work in the same way as before, the employees of the first organisation would be TUPE'd across to the second one, with their continuity of service and T&Cs intact. I'd suggest that OP seek advice from a solicitor/law centre/or even ACAS (though their advice can be a bit hit and miss these days) to see if TUPE applies here.

Many thanks for the compliment!

I take your point and I didn't explain mine very well.

The situation I had in mind was one where a large organisation closed down a small specialist department with about five staff. They made them redundant but the staff were invited to form their own company to carry out much the same work for the large organisation on a contract basis. The contract terms were tight and although they were able to take on other work it could not be in the same field. This seemed to be legal based on the advice at the time.

angelis16

hi
thankyou for all comments,much appreciated,just to clarify afew things
1)hubby has been employed their for 18 months
2)been told by "umbrella " comp that all tax/ni cont will be the employees resposibility
3)apparently normal hours as before
4)only 4 days notice given in changing to self employed
5)not much else to say except it sucks,thanks again for all the replies though:)

Notmyrealname

Uncertain wrote: »

I don't see how you can be so sure based on what's posted here.

Quite simple. He did a job as an employee and now he is being expected to do exactly the same job self employed VIA AN UMBRELLA COMPANY. If that doesn't tell you all you need to know, I don't know what does.

HMRC decide what is self employment and this isn't it.

Uncertain

Notmyrealname wrote: »

Quite simple. He did a job as an employee and now he is being expected to do exactly the same job self employed VIA AN UMBRELLA COMPANY. If that doesn't tell you all you need to know, I don't know what does.

HMRC decide what is self employment and this isn't it.

As I have said there are ways and means of doing this. Your assertion that it is illegal, just based on the information posted here, is far too sweeping.

zzzLazyDaisy

angelis16 wrote: »

hi
thankyou for all comments,much appreciated,just to clarify afew things
1)hubby has been employed their for 18 months

Just to clarify the service requirements (I may have inadvertently misled you)

For anyone employed before 5 April this year, the service requirement for unfair dismissal is 12 months (two years for statutory redundancy pay)

Anyone who started a job after that date must work for two years before they are covered by the employment protection legislation.

OP you can't stop this change happening, since the employer will have changed its business practices accordingly. However, as your OH already has enough service to go to tribunal, I strongly suggest that you get some legal advice about the change of status from employed to self-employed.

Check your house insurance, it often includes legal cover, which often includes employment disputes. You need to see a solicitor who specialises in employment law and ask them to consider whether this move is covered by TUPE or whether IR35 applies

http://www.contractorcalculator.co.uk/IR35.aspx

Either could mean that he remains an employee with his length and conditions of service intact, but this is a complex area of law and you need to see someone who can gather all the relevant facts and tailor the advice to your own particular circumstances.