Self Employed medical screen/drug testing - advice definitely needed

RockPaperScissors

Hi all,

I think I probably know the answer to this but I just wondered if anyone can point me towards any links or documentation to support it.

My OH is "self-employed". I use air quotes because he wears a uniform, works for a company, but they insist that everyone is self employed (nice way to get out of paying tax/holidays etc.)

I won't bore you with the details of how truly awful they have been but something has come up which I would appreciate advice on.

He has found out that they may be conducting media screenings and drug testing next week. He hasn't been told this by them but by another member of staff who was there when they were organising the company to come in and do it. He hasn't been notified of it yet.

Now we obviously have nothing to hide in terms of the drug testing - my issue here is around the legality of what they may be about to do. They are already walking a very very fine line but insisting that all of their employees are "self-employed". They have no contracts and could be out of work at the click of a finger.

I am familiar with drug testing/media testing laws for employed persons but he is not employed and therefore has no contract to consult. I believe I am right in thinking that they therefore cannot submit him to media screening/drug testing - is that correct?

He does work with machinery which I understand is covered by drug testing laws for employed persons - but what about self-employed?

We *may* be happy going to see our own GP to get a clean bill of health signed off if that's what it came to but I don't want him to see their privately hired company/nurses/whoever.

They have been told that if they refuse to do it, they won't be permitted to work. Obviously I'm sure they can do this as he is "self-employed".

Any thoughts or links to documentation about self-employed rights would be very useful.

Thanks!
RPS

stebiz

I think they are taking the !"£$ But there again if he refuses they can just terminate any contract as no employment law is applicable with him being Self Employed. Sounds like a company he's better off without.

Podge52

I would first check if he is self employed or if he should be an employee. have a look here. http://www.hmrc.gov.uk/leaflets/es-fs1.pdf

If he fits the profile as employed then you could contact hmrc and let them know.

If he is truly self employed then he can refuse the screening but as you have pointed out they are likely not to give him any more work and there is nothing you can do about that.

Fluff15

What industry does he work in? I work with the rail, and all employees including those who are subcontracted out and self employed MUST be D&A tested. It is a requirement of the law under Transport and Works Act 1992 to be in good health to work on the rail, and also complies with our company's accreditations.

In your husbands case, if he is working with a company that's using heavy machinery then his employer works under Health and Safety at Work Act 1974 to ensure the health, safety and welfare of ALL their employees and will also come under the Management of Health and Safety at Work Regulations 1999 to assess the risks to the health and safety of their employees. That means all people who work for them, including those who are self employed.

It's not something awful, if your husband is in good health and has nothing to worry about then I don't see the fuss? Your husband will still need to follow company procedure even if he doesn't have a proper contract like a direct employee.

They probably won't let you see your own GP as it usually must be carried out by an independent company who screens the urine. It also costs a lot of money to get a proper medical and D&A test done, so if the employer is offering this you'd be better off getting it done through them.

maninthestreet

Are you sure he is really 'self-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?
• 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?

RockPaperScissors

Thanks all,

He works loosely in forestry clearing trees from powerlines - his company are subcontracted by a very big UK company that deal with power.

I think the main reason we are resistant is because they have been so dreadful over the past few years with other issues - this just feels like us bowing down again to something that they shouldn't technically be able to do.

Podge52 - i spotted that previously and our answers are as follows so it's quite split.

Employed ! if you answer yes to most of the questions you are likely to be employed:
• Do you have to do the work yourself? Yes
• Can someone tell you where to work, when to work, how to work or what to do? YES
• Can someone move you from task to task? YES
• Do you have to work a set number of hours? NO
• Are you paid a regular wage or salary? YES - day rate
• Can you get overtime pay or bonus payments? NO unless emergency works are needed
• Are you responsible for managing anyone else engaged by the person or company
that you are working for? Helps out training new people but otherwise no

Self!employed ! if you answer yes to one or more of the questions you are likely
to be self!employed.
• Can you hire someone to do the work, or take on helpers at your own expense? NO
• Can you decide where to provide the services of the job, when to work, how to work
and what to do? NO Except that he can decide when to work - he can take a day off if he fancies
• Can you make a loss as well as a profit? No - only when the office cancel a job - if he doesn't work he doesn't earn money
• Do you agree to do a job for a fixed price regardless of how long the job may take? NO

If you can’t answer yes to any of the above questions, you are still likely to be
self!employed if you can answer yes to most of the following questions.

• Do you risk your own money? NO
• Do you provide the main items of equipment (not the tools that many employees
provide for themselves) needed to do the job? NO
• Do you regularly work for a number of different people and require business set up
in order to do so? NO
• Do you have to correct unsatisfactory work in your own time and at your
own expense? NO


Mixed bag?

Prothet_of_Doom

I suspect that you have read and understood this :

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

http://www.hmrc.gov.uk/ir35/guidance.pdf

I have a client who has strict security issues due to the nature of the site, and who has employees, of suppliers working on site. To get a security pass, you must goi through a security vetting process, and this has a drugs and alcohol element. Self employed contractors like myself also have to agree to pre-contract screening and the possibility of random checks anytime during the contract. It's in my contract.

They can give me one weeks notice, they pay no holiday, but I have to provide my own PPE, can choose (within reason) my own hours, could substitute me, for someone else with the same skills. I have my own professional indemnity insurance, and liability insurance, and direct my own work (I decide how it is done, with little direction).


It doesn't matter if you are an employee, an employee of a supplier who works on site or a contractor. If you want a pass, you agree to be screened. If you are a visitor, you have to be accompanied at all times.



So I'm thinking it's a perfectly reasonable thing to ask of anyone.

However, your OH is NOT self employed unless he meets the tests above. I suspect that the HMRC would kick the employer quite hard if they haven't covered their backs legally.

colino

I think you are drifting from the point here OP, he will either undergo the checks required or not and then either pass or fail or not be complaint. If employed, he'll go through the disciplinary procedure or if s/e, no longer be required. By all means look for vengeance on the company, but he's not gong to win by not complying.

RockPaperScissors

OK Thanks guys

RockPaperScissors

Prothet_of_Doom wrote: »

I suspect that you have read and understood this :

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

http://www.hmrc.gov.uk/ir35/guidance.pdf

I have a client who has strict security issues due to the nature of the site, and who has employees, of suppliers working on site. To get a security pass, you must goi through a security vetting process, and this has a drugs and alcohol element. Self employed contractors like myself also have to agree to pre-contract screening and the possibility of random checks anytime during the contract. It's in my contract.

Hey - yes we would of course not even be questioning whether or not to go ahead and do all of the tests if this was pre-contract screening or was in his contract. It's the fact that he doesn't and never has had a contract and they are requesting this that is frustrating.

Thanks for the replies.