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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 47917
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I was offered a salary and contract and then found out I was

Resolved Question:

I was offered a salary and contract and then found out I was self-employed after I asked for my payslip after one months notice. One of my managers then said ' oh didn't we tell you you were self employed'. I was not told verbally and my contract indicates sick and holiday pay with set hours of work. There is also a notice period of 6 weeks if I wish to terminate my contract which I signed. What are my rights now I know i am self employed and wish to terminate my contract before the 6 weeks stated on what I thought was an employees contract. Thanks
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.
Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today. How much notice do you wish to give?

Customer:

I would like to give a 2 week notice period.

Ben Jones :

were you specifically told you were going to eb an employee?

Customer:

No I was offered a salary and then sent a contract which had no indication I was self employed and did not ask me for a self employed number or that I would need to invoice the company on a monthly basis.

Ben Jones :

Your employment status is not determined by what you are labelled as, what your employer tells you you are or what is stated in your contract. It depends on the overall employment relationship, how you are treated, what rules apply in terms of your work and how it I given to you, the control the employer has over you and so on – there are many factors that can be considered and only a court can decide what your status is. So it could be that you are actually an employee anyway, regardless of what the employer refers to you as.

The issue is that you were never specifically told you were going to be an employee and this was your assumption. As such the employer has not actually done anything wrong because they have not misled you about your employment status – they never mentioned what you were supposed to be or what they employed you as and you alone assumed that you were an employee.

So whatever the case you would be bound by the contract which you signed as that does not change the way the job was advertised or offered to you.

Saying that it is still possible to leave without serving the contractual notice period you are bound by. Technically you would be in breach of contract but such claims are rarely pursued and the employer has to show they have suffered actual losses, which can often be difficult to do. In fact I am yet to deal with an employer who has made such a claim so it is possible to risk it if necessary.

Customer:

Ok thanks, ***** ***** unfair that I was not told this was a self employed contract as I have received this before and it has been clear from the start. It feels morally wrong that an employer would not be transparent. I think particularly as the contract seems specific to to being a employee and a salary with hours selected by my employers and as i stated before no outline of paying my own tax and national insurance. Thanks

Ben Jones :

I agree that morally there may be an argument but morals and the law do not always go hand in hand, but as entioned it does not matter what you employer call you, the employment status is decided legally looking at various factors, not what your employer call you

Customer:

Thanks, ***** ***** these various factors? Secondly i have been in this role for under 2 months. There is no probationary period mentioned. What are my entitlements to leaving earlier than the 6 weeks stated?

Ben Jones :

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

But even if you are enemployee you would still be bound by the contract you signed, whether on probation or not an regardless of how long you have been there

Customer:

thanks Ben, I still confused though as i now know im self employed does this bind me to the contract of 6 weeks notice period.

Ben Jones :

it would because you were given a contract which you accepted and signed and therefore would be bound by it, especially as you were not specifically told what your employment status would be so you cannot claim you were misled by the employer

Customer:

I don't understand how I was not misled by the employer if i was not made clear what my employment status was. As mentioned I have been self employed for 19 years where it has always been transparent and stated that an invoice and self employment code is needed. When I visited the CAB website the criteria states that my contract which i signed indicates strongly that this is an employees contract. This is the first time i have not had this transparency and it feels wrong that i had to ask them how they work out my pay and if i should submit a monthly invoice. I feel this should be the employers responsibility. Thanks

Ben Jones :

you do not have to be told what your status is - you are offered a job and a contract and take it based on that, the status is something that can be discussed separately but if it was not then you will not have been misled, but as mentioned this is a moral argument not a legal one

Customer:

Ok thanks. Its a lesson learned.

Ben Jones :

you are welcome, all the best

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