Self-employed consultant claiming wrongful dismissal!

Nednats

From what you have described she maybe a worker

http://www.hmrc.gov.uk/employment-status/#1

As a general guide as to whether a worker is an employee or self-employed; if the answer is 'Yes' to all of the following questions, then the worker is probably an employee:

• Do they have to do the work themselves?
• Can someone tell them at any time what to do, where to carry out the work or when and how to do it?
• Can they work a set amount of hours?
• Can someone move them from task to task?
• Are they paid by the hour, week, or month?
• Can they get overtime pay or bonus payment?

If the answer is 'Yes' to all of the following questions, it will usually mean that the worker is self-employed:

• Can they hire someone to do the work or engage helpers at their own expense?
• Do they risk their own money?
• Do they provide the main items of equipment they need to do their job, not just the small tools that many employees provide for themselves?
• Do they agree to do a job for a fixed price regardless of how long the job may take?
• Can they decide what work to do, how and when to do the work and where to provide the services?
• Do they regularly work for a number of different people?
• Do they have to correct unsatisfactory work in their own time and at their own expense?

AIUI if they working for one company using the company's equipment, They can't work for anyone else at the same time or hire someone else to do the work, then they are a worker.

Workers have some rights that employees do and they can take their employer to a Tribunal.

agrinnall

You describe her as a "self employed contractor". This suggests that there was a contract for services in place. What does it say about dismissal and notice? I think there's a good chance an ET claim would fail, but if you are in breach of the contract terms by instantly dismissing her then she would be likely to win a claim for compensation through the courts.

ILW

Sorry OP, but what has all this got to do with you?
Surely it's a matter between the directors and the "employee".

cazziebo

ami66 wrote: »

As my partner said - Imagine you've hired a window cleaner and he's cleaned your windows every month for the last 18 months. Then you say sorry I can't afford you any more. Can he turn around and claim unfair dismissal because after all that time we've effectively been employing him! :eek:

.

but presumably the window cleaner had other clients and therefore could not prove an employer/employee relationship.

If this person had no other clients then she could well be classed as an employee.

ami66

ILW wrote: »

Sorry OP, but what has all this got to do with you?
Surely it's a matter between the directors and the "employee".

It concerns me as the outcome will impact on my job.

If she has to be reinstated it will be hell working with her. I was already on the look out for another job before she left but the last 6 weeks without her have been great and I'm really enjoying my job now.

The accounts team have also overhauled the entire procedures which she refused to allow us to do, the results are that we don't need an extra member of staff so if she has to be reinstated it could that mean one of the other members of staff will be made redundant :eek:

ami66

cazziebo wrote: »

but presumably the window cleaner had other clients and therefore could not prove an employer/employee relationship.

If this person had no other clients then she could well be classed as an employee.

She always told us she had other clients, hence the reason she couldn't work extra hours. She would often say on a Monday how she had spent the weekend working on their clients books as her partner had been too lazy to do them during the week like he was supposed to when their daughters were at school.

Her invoices are even headed as J P Accounts Services, with a small footer stating Mr & Mrs Joe Public trading as J P Accounts Services.

End of the day I can only hope that I can keep my job without having to work with her again. If she did come back I won't be the only one heading out the door, it will be a mass exit and she can run the whole damn company as not one person wants her back :rotfl:

zzzLazyDaisy

Whatever the outcome of the tribunal claim, it is highly unlikely that she will be reinstated. The happens in only a tiny minority of cases normally where the employer is a large company with a number of branches so that it is possible for the employee to return to work without bad feelings and without disrupting the employers business. In the case of a small company, where the employee would have to return to work at the same place, it is normally accepted that the employer/employee relationship has broken down to such an extent that reinstatement is not feasible. Also reinstatement is only considered where the employee makes an application for reinstatement, and in most cases the employee is only looking for financial compensation anyway.

So in the circumstances you describe, I'd say you are worrying unnecessarily.

getmore4less

cazziebo wrote: »

but presumably the window cleaner had other clients and therefore could not prove an employer/employee relationship.

If this person had no other clients then she could well be classed as an employee.

How is the person taking on someone for contract of services going to know if thye are doing other work, thats their private business.

you would have to vet every supllier just in case you were their only customer.

ami66

Update in case it's helpful to anyone -

With regard to the unfair dismissal claim the judge threw out the case stating there was no case for my Employers to answer as she was clearly a subcontractor and therefore could not claim to have been unfairly dismissed.

Thought that would be the end of it but approx 4 month later she's back on the scene having lodged a new claim this time claiming discrimination due to her disability. Have no idea what disability as no one was aware she had a disability!

Employer due back at court in May for a new hearing.

somethingcorporate

What a joker, she should find a less destructive hobby than clutching at straws.