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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46224
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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can i dismiss my sub contractor under gross misconduct. Although

Resolved Question:

can i dismiss my sub contractor under gross misconduct. Although he is a sub contractor he gets paid for holidays and when he is not working.
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 long has he worked there for?
Customer:

Hi Ben, he has been with us for around 6 years

Ben Jones : What is the gross misconduct allegation against him?
Customer:

Whilst still working for us he took our database of clients and contacted them to say he was now doing the work

Ben Jones : Ok you can dismiss him but how you go about it would depend on his employment status, whether he is an employee or self employed. He may be an employee in a legal sense even if he is labelled as self employed. Can you please check these questions and let me know if you believe he is an employee or self employed:
Ben Jones : https://www.gov.uk/government/collections/employed-or-self-employed#1
Customer:

Hi Ben, self employed

Ben Jones : ok thanks I will prepare my response and submit it here, will be ready this afternoon thanks
Ben Jones :

Many thanks for your patience. If this person is self employed and not an employee he would not be subject to the stricter rules on disciplinary procedures and protection against dismissal, in a sense that you would not be expected to follow a fair procedure or provide a fair reason for dismissal. These rules only apply to employees or if this person has a specific disciplinary procedure in his contract, which you are expected to follow.

Self employed workers can have their employment terminated at any time as long as they are issued with the required notice of termination as per their contract. Whilst you can just give him the notice period he is due and terminate the contract that way, you can also argue that what he has done is a fundamental breach of contract as well as breach of trust and confidence, which frustrates the contract and makes it void with immediate effect, allowing you to terminate it immediately and without giving any notice. That would allow you to terminate his employment straight away.

Customer:

subcontractors can be employees of the business that hires them, even if they have a written contract which expressly states that they are not employees. The ruling will be of great interest to businesses that choose, for a variety of reasons, to keep their workforce "off the books" by treating them as independent subcontractors rather than as employees.

Customer:

Hi Ben, is the following passage of any use to us.

Ben Jones :

someone's employment status does not depend on what the employer decides to treat the personnel as, rather it would depend on the overall employment relationship as determined by a variety of factors, such as the ones you looked at in the link I provided earlier. There have been many instances where employers and even employees have tried to get around these, but there are ways to try and deal with it, such as IR35, but that is an entirely separate discussion

Customer:

hi Ben, sorry for the delay. Many thanks

Ben Jones :

you are welcome, all the best

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46224
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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