Is this wrong?

mircea

Hi everyone

More than one year ago I started a job with the dubious title of Temporary on-going for a local company. Basically cheap labor hired for long term but without any of the permanent contract rights. Every week I would receive a pay slip stating my employee number, the tax I paid and the NIC. Since then I have left and in the process took them to court for discrimation. In their reply to my Employment Tribunal claim they stated they my status was actually self-employed. In my humble opinion you cannot be self employed if the employer pays your tax and I think they are just trying to dismiss my claim on grounds of non-employment. Am I correct?

dmg24

There is a (non exhaustive) list of criteria that a Tribunal use to determine whether someone is an employee or self employed. This list is someone on the HMRC website, I'll have a look when I've got a sec x

dmg24

http://www.hmrc.gov.uk/employment-status/index.htm

Here you go, good starting point.

gwernybwch

mircea wrote: »

I think they are just trying to dismiss my claim on grounds of non-employment. Am I correct?

From the information that you have provided, it would appear so.

Did you sign any kind of contract with them?

Yes the tribunal would take into account what 'contractual indicators' existed between you both i.e. if they paid your NI contribution and it appeared if that you had a contract of employment (even a verbal one), but they would take into account a number of other things -

Mutuality of Obligation - Were they 'obliged' to provide you work and were you 'obliged' to turn up for work i.e. did they ever turn around to you and say that they didn't want you to work the day after, or could you just tell them that you weren't turning in that day or sending someone in your place.

Integration - How involved were you in the organisation - were you scheduled on a rota, did you use their equipment?

Control - how did they control the work that you did? did they pay you by the hour or by the job?

Overall, they would decide if a 'reasonable' person could consider you to be an employee.

With the rise of companies employing agencies workers, there has been alot of similar cases to this. You might want to google Dacas v Brook Street.

LittleVoice

General employment agencies will say that their workers are self-employed but they pay employers NI and deduct PAYE and NI from the workers's pay.

Conor_3

LittleVoice wrote: »

General employment agencies will say that their workers are self-employed but they pay employers NI and deduct PAYE and NI from the workers's pay.

No they don't. What they do say though is that you're only employed for the duration of the contract.

dmg24

LittleVoice wrote: »

General employment agencies will say that their workers are self-employed but they pay employers NI and deduct PAYE and NI from the workers's pay.

My last temping contract said this.

Bean_Counter

mircea wrote: »

Hi everyone

More than one year ago I started a job with the dubious title of Temporary on-going for a local company. Basically cheap labor hired for long term but without any of the permanent contract rights. Every week I would receive a pay slip stating my employee number, the tax I paid and the NIC. Since then I have left and in the process took them to court for discrimation. In their reply to my Employment Tribunal claim they stated they my status was actually self-employed. In my humble opinion you cannot be self employed if the employer pays your tax and I think they are just trying to dismiss my claim on grounds of non-employment. Am I correct?

I would agree that you are an employee. You have been employed there more than a year, so are entitled to paid holidays etc I would think and other permanent contract rights.

Speak to acas if you want some professional advice, but don't be put off by your present employer.

dmg24

From the information given, I would agree that, on balance, you would be found to be employed.

However, being aware that a Tribunal will look at both sides of the argument, I am interested in your ex employer's reason for saying that you are self employed (apart from the contract)?

Could I ask the reasons why you believe you were discriminated against?

The thing to always bare in mind is that the Tribunal will give equal consideration to the arguments of both parties. Please do not let this put you off, but try to play devils advocate with yourself, consider what your ex employer will say.

I defended an employer in a case where there was an employed/ self employed argument. Even though I was on the opposite side, I do believe that the claimant was actually employed, however he lost the case, on the basis that he had a poorly prepared argument, and had not considered the evidence that we were going to come back with.

Hope it all goes well. If you need any more advice, feel free to PM me x

mircea

dmg24 wrote: »

From the information given, I would agree that, on balance, you would be found to be employed.

However, being aware that a Tribunal will look at both sides of the argument, I am interested in your ex employer's reason for saying that you are self employed (apart from the contract)?

Could I ask the reasons why you believe you were discriminated against?

The thing to always bare in mind is that the Tribunal will give equal consideration to the arguments of both parties. Please do not let this put you off, but try to play devils advocate with yourself, consider what your ex employer will say.

I defended an employer in a case where there was an employed/ self employed argument. Even though I was on the opposite side, I do believe that the claimant was actually employed, however he lost the case, on the basis that he had a poorly prepared argument, and had not considered the evidence that we were going to come back with.

Hope it all goes well. If you need any more advice, feel free to PM me x

Hi DMG24

Many thanks for your advice and thank you to everybody who posted their opinions on this thread.

I have done the HM Revenue criteria test and it would seem I was employed:

"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? - YES
• Can someone tell them at any time what to do, where to carry out the work or when and how to do it? - YES, SUPERVISOR
• Can they work a set amount of hours? - YES, 37
• Can someone move them from task to task? - YES, SUPERVISOR
• Are they paid by the hour, week, or month? - YES, BY THE HOUR
• Can they get overtime pay or bonus payment? - YES, 1/2 NORMAL PAY FOR ALL THE OVERTIME I DID".

In answer to your question regarding my ex-employer's reason to state I was self-employed, his argument is dependent on one paragraph in the contract:

"there is no obligation on the Company to offer work to you, or obligation on you to accept such work as is offered".
Not sure that anybody can stick a paragraph in a contract and totally change the employment status, regardless of other aspects of employment (as above).To top it all up if I was self-employed, they are puting themselves up for a lot of giref as they never informed me I was self-employed and not employed, hence I can sue for mis-representation, HM Revenue were also very interested in this scheme + I can claim from them all the benefits I missed when I was self-employed but did not know such as tax credits, company car tax relief, tax allowances for travel, food and expenses etc.

Thank you for your offer to help. I will pm you my claim in full. I am making a claim for racial discrimination (I am Romanian) but I don't want any financial benefits from them apart from a few months wages to compensate for my job loss. What I am looking for is a letter of apology from them and a willingness on their behalf to put in place procedures which will prevent this from hapenning in the future. Below is a summary and their reply with my comments:

1. Respondent claims Tribunal should throw claim out as I did not lodge a grievance - I did complain on numerous occasions to my supervisor, fact acknowledged by the later in the section 65 questionnaire I have sent him.

2. I claimed racial discrimination as I was called in private meetings and spoken to about my performance on a weekly basis. I felt this was excessive. Company claims I was spoken to about my performance several times because in September 2006 I was reading the news on the BBC website using the company computer and they were worried I was slacking off. What actually happened: they told me to train a new starter but they did not give him a computer!As 100% of our work is done on a PC I had to lend him mine and he was working while I was sat beside him like a lemon. After a week he was properly trained and could have worked by himslef but they still had no PC for him, so he was using mine. Incredibly bored I used an absent colleague's computer which was next to me to read the BBC news. I was immediately grassed by my lovely colleagues and pulled in a private meeting to be told off. Now I do admit that taken out of context this does not look pretty. However:
- I could not do any work anyway.
-I can name at least two colleagues who spent 8 hours a day playing games on the internet
-I can name at least one colleague who fell asleep at his desk (PROPERLY ASLEEP)
All the above colleagues were British/White?english. None of them have been called in meetings to be spoken about their performances. None of them showed any willingness to do any work. In the light of the above I think my supervisor's actions were biased and I was singled out in a negative way to be told off every time the team did not perform well.

3. I claimed discrimination as one of my colleagues who organises the staff lottery has consistently failed to approach me and ask if I wanted to join the staff lottery. She would go around everyones desks and ask them if they want to join in and when she got to my desk simply skipped me! Company claims my colleague never went around the office - there are about 20 people who can testify she did!

4. I complained I was singled out by my supervisor who called me in a meeting and asked me why I was tempering with my colleague's computers and altering their settings because my lovely colleagues complained about me again! I told him I did not and walked out of the meeting straight away. Company claims everybody was asked the same question - there are 20 witnesses who can testify they were not.

5. I claimed that I was singled out by my supervisor who called me in a meeting and asked me to speak more quieter because I was too loud and my colleagues complained - again! I told him I did not speak too loud and asked him if my colleagues' real reasons were the fact I spoke in Romanian to another colleague and the British did not like to hear foreign languages (caught a few funny faces behind my back several times). He denied. Company denies this is the reason of my colleagues' complaints. I have one witness willing to testify in court who heard one of my colleagues complain to my supervisor about the fact i spoke Romanian and that they "could not stand it".

6. I claimed that my supervisor has not actioned any of my complaints against my colleagues who were obviously vicious due to my origin (always isolated, never spoke to, never invited to their pub goings, always complained against me at the slightest opportunity etc) and in doing so he discriminated against me as he was always actioning my colleagues' complaints. Company responded I never complained and did not follow company grievance procedure. Supervisor admitted I complained in his response to the section 65 questionnaire. What company grievance procedure? I was never told they had one or shown one. I was never shown the management structure of the company. The only higher position staff was my immediate supervisor. The person above him was for the entire duration of my contract on maternity leave! In this context I think I did complain.

7. I claimed I was called a foreigner by one of my colleagues on at least two occasions. Company denies. There are at least twenty witnesses who can say this was correct.

I was expecting a mature response, perhaps admitting a corporate failure of myself as an employee, an apology even. It seems they have chosen to basically deny everything, even the fact I was employed and just bury their head in the sand.

Any opinions welcome.

Mircea

Bean_Counter

mircea wrote: »

I have done the HM Revenue criteria test and it would seem I was employed:

"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? - YES
• Can someone tell them at any time what to do, where to carry out the work or when and how to do it? - YES, SUPERVISOR
• Can they work a set amount of hours? - YES, 37
• Can someone move them from task to task? - YES, SUPERVISOR
• Are they paid by the hour, week, or month? - YES, BY THE HOUR
• Can they get overtime pay or bonus payment? - YES, 1/2 NORMAL PAY FOR ALL THE OVERTIME I DID".

In answer to your question regarding my ex-employer's reason to state I was self-employed, his argument is dependent on one paragraph in the contract:

"there is no obligation on the Company to offer work to you, or obligation on you to accept such work as is offered".
Not sure that anybody can stick a paragraph in a contract and totally change the employment status, regardless of other aspects of employment (as above).

That is certainly the best way to decide if employed or self-employed. I work in construction and this is a real hot potato with HMRC for us (so went to a few courses.) The fact that they have opne sentence in the contract is irrelevant. HMRC will look at the substance rather than just the contract, and the substance indicates that you are an employee.

I'm not an expert on the rest of your post, so will not post based purely on what I believe. Except to say that some of your colleagues are contemptable, and unless anyone says differently, keep up the claim.