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taratill
taratill, Solicitor
Category: Employment Law
Satisfied Customers: 6307
Experience:  15 years experience of advising on employment law matters
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Is he an employee or self employed? He worked for company under

Resolved Question:

Is he an employee or self employed? He worked for company under cis scheme as some men were on the books some were not. This was his only place of work. He worked in the office placing jobs and checking jobs. Was told he would be put on books but was not. He was paid for holidays. His wage was the same every month. The company lost a big contract so they then altered his wage. He had 2 weeks holiday and when his wage was due the holidays had been deducted and he was put on a hourly rate. He has had no notification at all on changes other than his wage has been cut by a massive difference
Submitted: 2 years ago.
Category: Employment Law
Expert:  taratill replied 2 years ago.
taratill :

Hello my name is ***** ***** I am happy to help you today. How long has he worked there for?

Customer:

Over 3 year possibly more

taratill :

Was he subject to the employer's normal employment procedures, such as disciplinary and greivance? Why has this question arisen?

Customer:

he originally worked for him plastering but then was asked to run jobs and sort the men out and sign off jobs etc. He was told he would go on the books but this has not happened. He was paid every 4 weeks like everyone else but it was a set rate until they lost a contract and his money was cut with no explanation

taratill :

Ok can you explain why the question of employment status is now important?

Customer:

he still works there but we feel he has been unfairly treated

Customer:

he is looking for another job

Customer:

i feel it is important because we dont know how he stands legally as he was cis

Customer:

are you still there?

taratill :

Hi yes I am, I work on several issues at once so there may be a small delay.

taratill :

Ok in terms of the pay reduction, did they give him notice that his pay would be reduced. Did he sort his own tax out or are tax and NI deducted at source?

Customer:

They didnt give any notice. They deducted tax but not national insurance. on his wage slip the tax was deducted as CIS

taratill :

OK just a couple of further questions. Is he able to send someone else in to work in his place? Does he provide his own tools?

Customer:

when the company lost this contract he was asked to go back on the tools for a few weeks.He is still doing this so yes he uses his own tools but when he was in the office he had no tools to use. He personally has no one else he can send as he has no staff himself. They have won another contract and he has been asked to run it again but he wants to leave the company as soon as he can as he believes he has been mis treated.

taratill :

Hi thanks for your response. Ultimately only an Employment Tribunal can determine whether a person is an employee or self employed person for employment law puposes. On the basis of what you say I think that for HMRC purposes he is more likely to be deemed to be an employee. HMRC provides guiidance specific to the construction industry. Key factors are whether the person is paid hourly and whether they incur any financial risk in taking on a job.

taratill :

I attach a form of guidance for you to look at in that regard.

taratill :

http://www.hmrc.gov.uk/new-cis/cis349.pdf

taratill :

As an employee he has the right not to have his contract unilaterally varied and his wage cut without prior notice.

taratill :

He could therefore consider bringing a claim for unlawful deduction from wages. Obvioulsy the employer will contest his employment status if he does, but the employment tribunal does have the power to consdier whether he is employed or self employed during the process of hearing the claim.

taratill :

If you have any further questions please do ask. If i have answered your question I would be grateful if you would take the time to rate my answer. Thank you and all the best.

Customer:

Do you think he has a case on the basis i have told you

taratill :

Yes I do. When was the rate changed though because the only thing I haven't considered is time limits?

Customer:

the rate changed in June. We went on holiday 2nd June. for 2 weeks. His following pay was deducted 2 weeks. So he only got paid 2 weeks money rather than the 4. His July wage was then £600.00 down and so was August.. On his payslip it now gives an hourly rate rather than a set amount as before.

taratill :

Ok you need to act immediately then as otherwise he may be deemed to have accepted the variation.

taratill :

I would suggest you raise a grievance first as well.

Customer:

ok Thank you

Customer:

He has already approached him on his wage decrease. He wasnt forth coming with an answer

taratill :

Ok well he can just submit a claim then at www.employmenttribuanls.gov.uk

taratill :

On the basis of what you say he defintiely has an argument that he is an employee and this amounts to an unlawful deduction.

taratill :

If you have any further questions please do ask. If I have answered your question I would be grateful if you would take the time to rate my answer. Thank you and all the best.

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