Boss can’t use me as self employed?

Rakushun

Hi all,

I’m self employed and negotiating a role with a company I’ve previously worked SE sessional for. I’ll be working on the books part time.

The question comes from them telling me that I can’t work them and do SE work (invoice them), though they don’t do paid overtime, and will still use sessional workers for tasks their staff don’t deliver.

 They said it would be against the law, so if it is correct I would like to know what law they are referring to, and if not, knowing would mean I would be able to point them in the right direction.

 Does anyone know the answer?

 Thanks,
 Rakushun

BoGoF

Generally speaking self-employment is not a matter of choice and depends on the facts of each relationship. Have you tried using HMRC's status tool that will give you an idea of what their view would be?

Maybe they have their knuckles rapped for treating people as self-employed when they shouldn't have been.

Hoenir

Rakushun said:

I’m self employed and negotiating a role with a company I’ve previously worked SE sessional for. I’ll be working on the books part time.

Then you sound like an employee. Working under the direction of the employer. Being an employee offers far more security and benefits. A good employer isn't going to leave themselves open to problems with the HMRC. 

Rakushun

I would be an employee 3 days yes, but I offer seperate services as a sole trader. Things that they hire outside contracters(?) for as they do not have roles for that work. 

Question is can I work for somebody for my job, AND work for myself doing what I do already which is different to the job.

kind of like doing and admin job and also teaching people how to bake cakes or something as a sole trader. They hire you to do one task or teach one class, you invoice them and you don’t expect to have to do it for them again next week, it’s a one off invoiced activity that you also offer to everyone else who wants to learn in exchange for payment at your chosen rates.

another one would being their admin staff, and they hire you for your electrician side business.

is it legal to agree to pay for the specialist services of someone who also happens to be on your staff.

Marcon

Rakushun said:

Hi all,

I’m self employed and negotiating a role with a company I’ve previously worked SE sessional for. I’ll be working on the books part time.

The question comes from them telling me that I can’t work them and do SE work (invoice them), though they don’t do paid overtime, and will still use sessional workers for tasks their staff don’t deliver.

 They said it would be against the law, so if it is correct I would like to know what law they are referring to, and if not, knowing would mean I would be able to point them in the right direction.

 Does anyone know the answer?

 Thanks,
 Rakushun

A company is highly unlikely to both employ someone and also use that someone's services on a self employed basis simply because of the problems it could create for them with HMRC. It doesn't sound as if they want to be 'pointed in the right direction' - ultimately it's their call not yours.

Nothing to stop you having two contracts of employment with them - one for 3 days a week, the other zero hours (which would get round the issue that they don't pay overtime) - for two different roles.

Rakushun

Marcon said:

A company is highly unlikely to both employ someone and also use that someone's services on a self employed basis simply because of the problems it could create for them with HMRC. It doesn't sound as if they want to be 'pointed in the right direction' - ultimately it's their call not yours.

Nothing to stop you having two contracts of employment with them - one for 3 days a week, the other zero hours (which would get round the issue that they don't pay overtime) - for two different roles.

Thanks Marcon,

I’m aware it’s their choice, which is why I’d like to know legal facts in case it is possible, they told me that they wouldn’t be able to, not that they wouldn’t want to, and my services/qualifications are not unique so other sessionals would still provide it to them when needed, so why not me.

I like the idea of a zero hours contract for my service, I wouldn’t be self employed here (easier for me) but I would be the go to person. I may suggest it later when I know more about the company.

Thanks again,
Rakushun

Marcon

Rakushun said:

Marcon said:

A company is highly unlikely to both employ someone and also use that someone's services on a self employed basis simply because of the problems it could create for them with HMRC. It doesn't sound as if they want to be 'pointed in the right direction' - ultimately it's their call not yours.

Nothing to stop you having two contracts of employment with them - one for 3 days a week, the other zero hours (which would get round the issue that they don't pay overtime) - for two different roles.

Thanks Marcon,

I’m aware it’s their choice, which is why I’d like to know legal facts in case it is possible, they told me that they wouldn’t be able to, not that they wouldn’t want to, and my services/qualifications are not unique so other sessionals would still provide it to them when needed, so why not me.

I like the idea of a zero hours contract for my service, I wouldn’t be self employed here (easier for me) but I would be the go to person. I may suggest it later when I know more about the company.

Thanks again,
Rakushun

Sounds like a classic 'shut down' clause, regardless of the actual legal position, used when a business simply doesn't want to know.

Hoenir

Marcon said:

Rakushun said:

Marcon said:

A company is highly unlikely to both employ someone and also use that someone's services on a self employed basis simply because of the problems it could create for them with HMRC. It doesn't sound as if they want to be 'pointed in the right direction' - ultimately it's their call not yours.

Nothing to stop you having two contracts of employment with them - one for 3 days a week, the other zero hours (which would get round the issue that they don't pay overtime) - for two different roles.

Thanks Marcon,

I’m aware it’s their choice, which is why I’d like to know legal facts in case it is possible, they told me that they wouldn’t be able to, not that they wouldn’t want to, and my services/qualifications are not unique so other sessionals would still provide it to them when needed, so why not me.

I like the idea of a zero hours contract for my service, I wouldn’t be self employed here (easier for me) but I would be the go to person. I may suggest it later when I know more about the company.

Thanks again,
Rakushun

Sounds like a classic 'shut down' clause, regardless of the actual legal position, used when a business simply doesn't want to know.

Probably had an HMRC payroll audit in the past.  Can be a brutal experience. Causes employers to rethink their internal policies. 

sheramber

Would you only be doing the ‘self employed’ work for you employer or would you have other clients as well?

If only working for them then it is likely to classed as employed.

Any reason why they cannot employ you for the seasonal work on the days you would not be employed by them otherwise?

Andy_L

Rakushun said:

Hi all,

I’m self employed and negotiating a role with a company I’ve previously worked SE sessional for. I’ll be working on the books part time.

The question comes from them telling me that I can’t work them and do SE work (invoice them), though they don’t do paid overtime, and will still use sessional workers for tasks their staff don’t deliver.

 They said it would be against the law, so if it is correct I would like to know what law they are referring to, and if not, knowing would mean I would be able to point them in the right direction.

 Does anyone know the answer?

 Thanks,
 Rakushun

They've probably used this 
https://www.gov.uk/guidance/check-employment-status-for-tax

Elliott.T123

Ultimately unless you are so unique with your skill set and so key to their business that they would be unable to find anyone else to do the work then you aren't going to be able to change their mind no matter how much information you present to them showing it is legally allowed.

They have made a choice as that is what the leadership feels is best for the business, the reasons they gave you may or may not be true.