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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 44867
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I am working for a friend on a commission only basis. This

Customer Question

I am working for a friend on a commission only basis. This is now a full time occupation and it is going very well. He is now starting to ask if I want to be employed and initially I thought it was an attempt to cap my earnings since things are going well and my commission could be considerable. However, I'm not sure. He keeps emphasizing my self-employed status and saying "it's your responsibility" and it's making me feel uneasy that either my contract terms are rubbish (which I'm sure they are) or I have overlooked some aspect of my position which could come back and bite me.

Any comments would be much appreciated?
Thank you.
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is Ben and it is my pleasure to assist you with your question today.

Ben Jones :

How long have you been working there for?

JACUSTOMER-wu10yqlk- :

Thanks Ben. It's been 2 and a half years now.

Ben Jones :

ok let me get my response ready please

JACUSTOMER-wu10yqlk- :

Not a problem Ben. I'm working here too so I don't expect instant replies. Thanks.

Ben Jones :

Whether you are an employee or self employed does not actually depend on what your employer has labelled you as - you could have been an employee all this time for all you know. However, establishing one's employment status is not an easy task and there is no single test that can be used. 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

this will give you an idea of what you are likely to be now. If you are genuinely self employed and wish to be moved to an employee position you must again remember that it is not just a matter of giving you a new contract and changing your label, the overall relationship must reflect that too.

In terms of what's better there are pros and cons to each. As an employee you will have protection against unfair dismissal, receive paid holidays, be entitled to sick pay and redundancy pay, rights on maternity/paternity, not worry about calculating and paying your own taxes, and so on. So there are certainly advantages. You can negotiate your contract to reflect the payment structure you currently get so you will not necessarily have to lose out on pay.

JACUSTOMER-wu10yqlk- :

Thank you Ben. It's really not straight forward at all. I will read through the link more carefully and get back to you.

JACUSTOMER-wu10yqlk- :

Unfortunately, I'm a hard working but stroppy woman so I quite like being able to run things my way. It's proved to be a success and I hope the rewards will make it worth it long term but I don't want to feel my work could go unrewarded at any time and me left high and dry. It's happened before, many years ago, and I don't want it happening again. I think I need a contract that will pay me the commission on the work I am generating without me feeling vulnerable if they decide they or someone else could take on my job without it costing as much. Is there any "standard" contract for this sort of thing?

JACUSTOMER-wu10yqlk- :

Thanks

JACUSTOMER-wu10yqlk- :

Leigh

JACUSTOMER-wu10yqlk- :

Thank you Ben. It's really not straight forward at all. I will read through the link more carefully and get back to you.

6:47 PM

Unfortunately, I'm a hard working but stroppy woman so I quite like being able to run things my way. It's proved to be a success and I hope the rewards will make it worth it long term but I don't want to feel my work could go unrewarded at any time and me left high and dry. It's happened before, many years ago, and I don't want it happening again. I think I need a contract that will pay me the commission on the work I am generating without me feeling vulnerable if they decide they or someone else could take on my job without it costing as much. Is there any "standard" contract for this sort of thing?

6:47 PM

Thanks

6:47 PM

Leigh

Ben Jones :

Hi Leigh, there can be a standard employee contract but that will only serve to ensure your minimum rights as an employee are covered - any additional remuneration like bonuses, commission, etc will be specific to your arrangements with the employer and are negotiable between you so they will just be additional to these general contractual contents.

JACUSTOMER-wu10yqlk- :

Hi Ben, I don't want to be an employee but I do want a contract that protects me in terms of securing my position with commission on work that is carried out in the UK. I am concerned that as work grows and my clients have repeat projects they may by pass me and there will be a feeling that I don't deserve commission on those jobs. I am working very hard to build up this business and don't want to be cut out if they think they don't need me any more. Any advice?

Ben Jones :

What commission entitlements you work under is for you and the employer to negotiate and to have included in your employment contract. You can include anything in there, you and the employer decide on what is in there by agreeing it between you. We cannot carry out contract negotiations on your behalf unfortunately

Ben Jones :

I hope this has answered your query. Please take a second to leave a positive rating, or if you are unhappy for some reason with the advice - please get back to me and I will assist further as best as I can. Thank you very much

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