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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 44924
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I had a guy working as a sales rep last

Customer Question

Hi I had a guy working as a sales rep for me for the last ten months.He told me recently that he wanted to leave so we ended what I thought was amicably.
Initially he was employed but after 6 weeks he wanted to be self employed and this is the basis in which he worked.
He is now trying to claim unfair dismissal because I didn't give him payslips pay tax and NI.
My question is if he is now claiming that he was employed can I pursue him through the county court for monies I over paid him i.e the difference between his gross and net pay as well as time off?
Submitted: 6 months ago.
Category: Employment Law
Expert:  Ben Jones replied 6 months ago.
Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today.
Expert:  Ben Jones replied 6 months ago.
Have you checked to see if he was actually an employee or self employed?
Customer: replied 6 months ago.
my point is he is saying he was employed to acas even though he worked for me on a self employed basis surely if he is an employee then he is over paid if he is self employed he has no claim I think hes trying his luck with a no win no fee solicitor without telling the everything
Expert:  Ben Jones replied 6 months ago.
it doesn't matter what he is saying, that is not what determines his employment status. Can you perhaps try and take this short test to see what it comes out with: http://tools.hmrc.gov.uk/esi/screen/ESI/en-GB/summary?user=guest
Customer: replied 6 months ago.
not currently working I'm afraid
Expert:  Ben Jones replied 6 months ago.
try to access it from this page: https://www.gov.uk/guidance/employment-status-indicator scroll down to the link that says Access the ESI tool and further guidance
Customer: replied 6 months ago.
Employment Status IndicatorESI reference: E1205161137990Enquiry detailsThe worker is self employed [Why?]
Summary of outcome.There is a low indication of substitution. [Why?]There is a medium indication of control over the worker. [Why?]There is a high indication of financial risk. [Why?]
Expert:  Ben Jones replied 6 months ago.
ok, so what this shows is that the likelihood is that he is genuinely self employed. Neither you nor he chooses what his status is - that is determined by law based on how he is treated. So if he goes to court and tries to claim that he was an employee then this is what the court would look at to determine his status and whether he would be allowed to take the claim further. If he is self employed then he is not protected against unfair dismissal so it is unlikely he could take it further. Not only that, but even if he was an employee, he is not protected against unfair dismissal if he has less than 2 years' service with you. Not only that but he did not get dismissed, he resigned. So overall, the chances of this getting any further are rather slim. So do not get yourself bogged down with making claims in the county court for a claim which you nay not b able to win yourself and instead show that he simply has no valid claim to bring against you 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 6 months ago.
Hello, I see you have read my response to your query. If this has answered your question please take a second to leave a positive rating by selecting 3, 4 or 5 stars from the top of the page. I spend a lot of time and effort answering individual queries and I am not credited for my time until you leave your rating. If you still need further help please get back to me on here and I will assist as best as I can. Many thanks.
Expert:  Ben Jones replied 6 months ago.
Hello, do you need any further assistance or are you happy with the above response? Look forward to hearing from you.

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