Employee or self employed? Why so complicated

Greensmiff

OK, so I am employed by a cleaning company. I'm paid by them, clean their client's site, wear their uniform. I'm being paid weekly. I then ask if they are paying my NI contributions, no they say. I need to do a self assessment and pay it off myself. So off I go and do that.

September rolls round, they have lost the contract with the client. I'm panicking because I have lost my job too. To cut a long story short, I discover TUPE and contact the new cleaning company. However my current cleaning company said I'm self employed because I did a self assessment. So TUPE doesn't apply.

My question is, am I really self employed? I think I'm just naive and used to HR dept doing this stuff on my behalf!

LilElvis

TUPE doesn't apply because that would require the new cleaning company to have taken over the one you currently work for. Losing a contract to a competitor doesn't count.

ACG

https://www.gov.uk/employment-status/selfemployed-contractor

There is a link on there where you can answer a few questions to see if legally you are employed or self employed.

My limited/basic understanding is that if you are told where to work, when to work and provided the equipment to do that work...you are employed.

It sounds like your "employer" has been breaking to law to get around their responsibilities (minimum wage, NI contributions, holiday and sick pay and pension payments). How you go about getting your entitlement I have no idea - an employment solicitor?

Comms69

Greensmiff wrote: »

OK, so I am employed by a cleaning company. I'm paid by them, clean their client's site, wear their uniform. I'm being paid weekly. I then ask if they are paying my NI contributions, no they say. I need to do a self assessment and pay it off myself. So off I go and do that.

September rolls round, they have lost the contract with the client. I'm panicking because I have lost my job too. To cut a long story short, I discover TUPE and contact the new cleaning company. However my current cleaning company said I'm self employed because I did a self assessment. So TUPE doesn't apply.

My question is, am I really self employed? I think I'm just naive and used to HR dept doing this stuff on my behalf!

I will just say this HR do NOTHING on your behalf. Their job is to protect the employer.

Join a union in the future

Brynsam

LilElvis wrote: »

TUPE doesn't apply because that would require the new cleaning company to have taken over the one you currently work for. Losing a contract to a competitor doesn't count.

TUPE certainly can apply where a contract is lost to a competitor - not invariably, but very often. Have a read of this: https://www.employmentsolicitor.com/tupe-accept-competitors-employee/

Dox

Greensmiff wrote: »

OK, so I am employed by a cleaning company. I'm paid by them, clean their client's site, wear their uniform. I'm being paid weekly. I then ask if they are paying my NI contributions, no they say. I need to do a self assessment and pay it off myself. So off I go and do that.

September rolls round, they have lost the contract with the client. I'm panicking because I have lost my job too. To cut a long story short, I discover TUPE and contact the new cleaning company. However my current cleaning company said I'm self employed because I did a self assessment. So TUPE doesn't apply.

My question is, am I really self employed? I think I'm just naive and used to HR dept doing this stuff on my behalf!

TUPE can apply if you are classed as a 'worker' and the company has lost a contract.

sangie595

Dox wrote: »

TUPE can apply if you are classed as a 'worker' and the company has lost a contract.

Employee, not worker. The two are very different things. TUPE does not apply to workers.

sangie595

Greensmiff wrote: »

OK, so I am employed by a cleaning company. I'm paid by them, clean their client's site, wear their uniform. I'm being paid weekly. I then ask if they are paying my NI contributions, no they say. I need to do a self assessment and pay it off myself. So off I go and do that.

September rolls round, they have lost the contract with the client. I'm panicking because I have lost my job too. To cut a long story short, I discover TUPE and contact the new cleaning company. However my current cleaning company said I'm self employed because I did a self assessment. So TUPE doesn't apply.

My question is, am I really self employed? I think I'm just naive and used to HR dept doing this stuff on my behalf!

You have less than two years service, I'm guessing? In which case it's probably moot, but you may well be a worker rather than an employee. But with less than two years employment, dismissal is easy for almost any reason. Unfortunately people in your position are often not well protected, and "rights" are often immaterial to the fact that you can't really do very much to enforce them.

Dox

sangie595 wrote: »

Employee, not worker. The two are very different things. TUPE does not apply to workers.

TUPE has a wide definition for “employee” which is likely to include workers. The link given above by Brynsam may help you.

Comms69

Dox wrote: »

TUPE has a wide definition for “employee” which is likely to include workers. The link given above by Brynsam may help you.

I doubt that somehow

antrobus

Dox wrote: »

TUPE has a wide definition for “employee” which is likely to include workers. The link given above by Brynsam may help you.

The protections of TUPE only apply to employees. The definition of an employee under TUPE is wider than normal and will include an individual who works under a contract of employment or apprenticeship.

If you are a worker, an agency worker or self-employed TUPE will not apply to you.


https://www.quantrills.com/for-employees/kb/who-and-what-transfers-under-tupe/