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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 47609
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Hi, I have worked for a company within the construction

Customer Question

Hi,

I have worked for a company within the construction sector for the last 10 years as a sub contractor with no break in contract apart from family holidays. I have never received holiday or sickness pay, can you please answer the following questions based on the above:

1. Should I have received holiday pay, if so am I able to back date it?
2. Should i infect be employed by the company, rather than on CIS?
3. Is there anything else that i maybe entitled to?

Regards

Paul
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. can you tell me if you are self employed or if you are an employee on a contract of employment please

JACUSTOMER-ry6txixm- :

Hi,

JACUSTOMER-ry6txixm- :

I am self employed in the tax sense

Ben Jones :

Ok thank you leave it with me I need to look up a few things and then get my advice ready.I will post back on here when done there is no need to wait and you will receive an email when I have responded. I have a meting this afternoon and will get my advice ready for you for latter this afternoon regards bean

Ben Jones :

Thanks for your patience. To answer your queries, your rights will very much depend on your employment status. If you were genuinely self employed then you would have few rights in the circumstances, however if you were actually an employee you would be able to claim more than you received. Sadly there is no easy way to determine your employment status. You may have been self employed for tax purposes but it does not automatically mean you were also self employed in your employment status.

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 you may get a good idea of what your 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.

As to your particular queries, I can answer as follows:

1. Should I have received holiday pay, if so am I able to back date it?

You are only entitled to holiday pay if you were an employee, not if you were self employed. If you were never paid for holidays and you were an employee then you can backdate it if necessary.

2. Should i infect be employed by the company, rather than on CIS?

Not necessarily, you may still be employed under CIS, however that only applies if you were self employed. If you were an employee you can argue you should be employed by the company directly, not through CIS.

3. Is there anything else that i maybe entitled to?

As an employee you are entitled to:

  • Sick pay
  • The National Minimum Wage
  • Redundancy pay if you are made redundant

Hope this clarifies your position?

Ben Jones :

Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this? Thanks

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