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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 44926
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Dear Sir/Madame, My ex partner has worked for a window fitting

Customer Question

Dear Sir/Madame,
My ex partner has worked for a window fitting firm for 4 years and has still not been put on the books. I spoke with Citizens Advice and researched the ACAS website last year and found out that John should have, after 3 months been given the same rights as anyone else (as we have accertained that he is not self employed) but he still hasn't after 4 years! He works exclusively for the Company and always gets a payslip. He has no paid holiday at all and works from 7.30 am until anythime after 6pm and his pay stays the same regardless of how many hours he works. His boss recently offered him a job as troubleshooter as John is so skilled at the difficult fitting jobs, saying he will go on the books but now he says he can't until after this April this year as it would lose the company £6,000!
I am extremely angry at this as I am sure this is illegal, unfortunately John is very reluctant to say anything for fear of losing his job. We are both certain that in April there will be another excuse and the situation will stay the same.
I want to write to his boss but I have been forbidden to do that so my hands are tied.
Any help that you can give in this situation would be greatly appreciated,
Sincerely
Kerry Tilley
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.
Hello, my name is XXXXX XXXXX it is my pleasure to be able to assist with your question today. Please let me know if you believe that he is actually an employee?
Customer: replied 3 years ago.

Citizens Advice, myself and John believe he is self emplyed as the company pay his tax and he works eclusivly for the company as the boss has made it very clear they are not to do other work

Expert:  Ben Jones replied 3 years ago.
Sorry you initially mentioned you ascertained he is not self employed but now you say you believe he is self employed? Can you please clarify?
Customer: replied 3 years ago.

Sorry, my mistake, is is employed and NOT self employed. He was also never given a contract

Expert:  Ben Jones replied 3 years ago.
If he is actually an employee (which is determined through his employment relationship rather than what he is labelled as) then he will have certain rights which are automatically given to him by law. Unfortunately it does not mean that he will have the same rights as everyone else as other employees may have more favourable terms due to the contracts they have, but he will still have minimum rights by law.

For example he will have the following rights:
• Receive the National Minimum Wage of £6.19 per hour for the work that he undertakes.
• Not work more than an average of 48 hours per week unless he has opted out of that limit
• Receive holidays equal to 28 days a year if he works full time (reduced pro rata if he works part time)

He is able to claim for all these rights as long as he can demonstrate that he is an employee.

In terms of establishing one's employment status is not an easy task and there is no single test that can be used. It is usually irrelevant what a person is labelled as by their employer because their status would not depend on that, but on the overall employment relationship, how the employer treats them, etc.

Following years of case law, a number of established factors have generally been accepted as a reasonably accurate way of establishing whether someone is an employee or self employed. The courts would still use some of these to get an overall picture of the employment relationship and determine the person's employment status.

The tests that are most commonly used can be found here:

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

By following the link and answering the questions one may get a good idea of what someone's employment status is, although it is worth noting that these are still only an indication and only a court can provide a definitive answer. They are nevertheless useful to use in negotiations with the employer.

Please take a second to leave a positive rating as that is a very important part of our process. Your question will not close and I can continue providing further advice if necessary. Thank you
Customer: replied 3 years ago.

so really what you are saying, (regardless of the four years he has worked for that company, and that he gets a payslip showing his tax national insurance is paid) is that he just has to put up with it. there are six employess where he works and three are on the books and in fact do the same work as him but usually with less hours. This seems incredibly unfair and I thought there would be more he could do to change this situation. It seems his boss holds all the cards!

Expert:  Ben Jones replied 3 years ago.
No I never said that he has to put up with it, quite the opposite - I said that he has certain rights which he is entitled to by law, as long as he is an employee. So he is perfectly entitled to try and enforce these and challenge his employer if he has not been given what he is entitled to. What he cannot claim is to be given the exact same rights as everyone else as these could be better than the legal minimum because of the contracts they have in place and that is a contractual issue, not a statutory one.
Customer: replied 3 years ago.

Ok, I see what you are saying. How then is the best definative way to show he is an employee,(would that be throught the link you have provided?) and once we have done that what would you thinl would be the best way to approach things? In the past John has tried to talk to his boss but he is not at all approacable so John is now extremely reluctant to approach him again

Expert:  Ben Jones replied 3 years ago.
the link is the starting point but as mentioned it may often be impossible to show with certainty what his status is and it would usually be down to the courts. So he needs to show that he meets the criteria from the link then approach the employer informally or formally by raising a grievance. If he is still reluctant to do anything then it is time to consider going down the legal route

As your original question has been answered I would be grateful if you could please quickly rate my answer - it only takes a second to do. I can then continue providing further advice and answer follow up questions if needed. Thank you.
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 44926
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 3 years ago.

ok, thank you for your advice. when I speak to John tomorrow am I able to ask you another question if one arises without having to pay again? If so how do I do that?

Expert:  Ben Jones replied 3 years ago.
Yes you may, just come back to this page and post your question as you did just now
Customer: replied 3 years ago.


how many days do I have to speak to you?

Expert:  Ben Jones replied 3 years ago.
there is no limit as long as the question is related and does not require excessive extra advice
Customer: replied 3 years ago.


That's great, many thanks for now. Kerry

Expert:  Ben Jones replied 3 years ago.
No problem

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