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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 48474
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I have been working somewhere years as effectively

Resolved Question:

Hello, I have been working somewhere for 8 years as effectively a freelance, ie no paye or NI. If I cannot make a day, I am required to find a deputy. Does this mean that I effectively have a contract or some legal right? There is a possible situation coming soon to give everyone 2 months' notice (as in the original job description), and then re-interview and re-employ people. Do I have any grounds for suing for aggravated dismissal or can I refuse to accept the notice? Thanks, Neil.
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.
Hello, my name is ***** ***** it is my pleasure to assist you with your question today. What is the reason for terminating the current contract?
Customer: replied 2 years ago.

We have received a consulation letter, asking for our responses to various performance-related questions. Part of the introduction states "terms and conditions have been recorded in a fairly informal manner and the nature and degree of commitment is less clear than it could be....The engagement of all staff should now be placed on a clear footing."

Expert:  Ben Jones replied 2 years ago.
Thank you I will respond fully in the morning
Expert:  Ben Jones replied 2 years ago.
Good morning, the first step would be to try and establish your employment status as a person's legal rights in the workplace will mainly depend on that. However, establishing your employment status is not an easy task and there is no single test that can be used. It is usually irrelevant what a person is labelled as by their employer because their status would depend on the overall employment relationship, not on what they referred as.
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.
You may use the Government’s Employment Status Indicator tool to find out what your status is most likely to be:
https://www.gov.uk/employment-status-indicator
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.
If you are an employee then you will have better rights than if you were self employed. You will have protection against unfair dismissal, which means that the employer would have to show there was a fair reason for terminating your contract and also follow a fair procedure. According to the Employment Rights Act 1996 there are five separate reasons that an employer could use to show that a dismissal was fair: conduct, capability, redundancy, illegality or some other substantial reason (SOSR). The employer will not only need to show that the dismissal was for one of those reasons, but also justify that it was appropriate and reasonable to use in the circumstances. In addition, they need to ensure that a fair dismissal procedure was followed and this would depend on which of the above reasons they used to dismiss.
If you are self employed then unfortunately none of the above protections apply and you could have your employment terminated simply by being given the contractual notice period you are entitled to.
Therefore, as you can see your rights very much depend on what your employment status actually is and the link above would be your starting point at trying to establish that.
I hope this has answered your query. Please take a second to leave a positive rating, or if you need me to clarify anything before you go - please get back to me and I will assist further as best as I can. Thank you
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