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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 44874
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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There. my partner is self employed / sole trader, he wants

Customer Question

hi there. my partner is self employed / sole trader, he wants to take someone on but due to the nature of work it would be an adhoc basis. would it be best if the employee was self employed to therefore was responsible for his own tax / national insurance or should my partner take him on as an employee? thank you
Submitted: 12 months ago.
Category: Employment Law
Customer: replied 12 months ago.
please can I provide you with some more detail so your are able to offer an accurate response -my partners business is falconry and pest control, he has been self employed / sole trader for just over 2 years now. he has very busy periods March - August and this time of year (December) he is very quiet and only has enough work for himself. he wants to take someone on to help with the busy period but cant promise constant full time work, therefore wasn't sure if the new person should also be self employed and they do their own tax and national insurance, rather than my partner setting himself up as an employer. the individual will also be working part time through a high street retailer.Also the individual, is a very good friend of many years but he wants a contract of employment (full time) as he is from Pakistan and his family are doing a pilgrimage. For their pilgrimage to be approved he has to show he is in full time work by providing a contract of work so he can support his family financially should he need too.
We are unsure if this is true and feel this may subject my partners business to risk and also feel this is not his responsibility. as the work is very ad-hoc with busy periods and not so busy periods we feel a general contract with work paid for hourly to be sufficient not an annual salary as the full time hours cant be promised.
Would my partner have to provide holiday pay/ statutory sick pay etc. what employment route would you advise for his position as he is a small business?Kind regards
Anna
Customer: replied 12 months ago.
apologies the 'individual' is the new person he wants to take on. I want to also note the individual has been studying in the UK and obtained a degree from Bournemouth university and has been working full time in the UK and Wales for many years so we not feel its for a visa etc. we are just unsure if this pilgrimage thing is true? the individual has openly said he wants the contract so his family can get their pilgrimage approved, then tare the contract up, but still wants to work for my partners business on a ad hoc basis, its just the formality but this we are very unsure off and feel this may be illegal.Kind regards
Anna
Customer: replied 12 months ago.
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Expert:  Ben Jones replied 12 months ago.
Hello I am happy to help with the employment aspect of your query but the pilgrimage part will be an immigration query so you need to ask it as a separate question. Can you please let me know how long the person would be employed for in the busy periods and how long a break there will be afterwards during the quiet period?
Customer: replied 11 months ago.
Hi Ben. Thank you for your email. So the person would be employed full time from March to July / august, then would be part time from august to October, then October to February possibly no work this is based on pest control. If the company expands and is successful in other areas such as education and experience days then there would be the option for more hours.Kind regards
Anna
Expert:  Ben Jones replied 11 months ago.
Hello, whether this person is employed as an employee or self employed will depend on the way he is treated, not necessarily on what he is labelled as. For example, it is possible for someone to be employed as self employed but in reality to be an employee and vice versa. So in the first instance you should look at the factors which determine a person’s employment status and see if they are more likely to be an employee or self employed, based on the nature of the relationship, and take it from there.You can use the employment status indicator tool below to try and determine this:http://tools.hmrc.gov.uk/esi/screen/ESI/en-GB/summary?user=guestIf it looks like the way they will be treated as an employee it would mean that they will have to get the usual benefits, such as paid holidays, sick pay, etc.Either way this person can be employed on short term fixed contracts, which would last for a fixed period of time and it means the employer would not have any liability to keep them on after the expiry. In summary, the person’s employment status would not depend on what the employer decides to employ them as but on the overall employment relationship and how they are treated, taking into account the factors you see in the employment status tool. You can adjust the employment relationship to sway it more towards either an employee or self employed but it is this that determines what they would be employed as. I hope this has answered your query. I would be grateful if you could please take a second to leave a positive rating (3, 4 or 5 stars) as that is an important part of our process and recognises the time I have spent assisting you. If you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you
Expert:  Ben Jones replied 11 months ago.
Hello, I see you have read my response to your query. 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? If your query has been dealt with please take a second to leave a positive rating by selecting 3, 4 or 5 starts from the top of the page. If you need further help please get back to me on here and I will assist as best as I can. Thank you.

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