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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46233
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I have been editing a publication on a freelance basis for

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I have been editing a publication on a freelance basis for 10 years. I edit the publication from home using my own kit and caboodle although I attend meetings in the publishers offices and attend shows for which the company pays my expenses. I pay my own tax and NI. The editorship is the only job I have.The owner has now decided to replace me with a younger and cheaper model who he has appointed editor in my place. My employer is continuing to employ me at £500 an issue (compared to £1,500 previously) so I can "train up" the new incumbent who shadows me like a puppy recording all my contacts, methods and "intellectual property" if you can call journalistic practice that!I have been continuously working for the company and, as I said, it is my sole employer. Because I have been employed for that long, on that basis do I have any employment rights? Should the owner be treating me as an employee? Has he "made me redundant" and can I claim any redundancy? By cutting my fee by two thirds has he engaged in "constructive dismissal"? If, as I suspect, when he considers the new editor ready to take the reins and he fires me entirely what protect, redundancy, compensation can I claim? What steps do you advise me to take?Regards,Henry Harington
Submitted: 7 months ago.
Category: Employment Law
Expert:  Ben Jones replied 7 months ago.

Hello can you please go through this questionnaire and let me know if the results say you are an employee or self employed?

http://tools.hmrc.gov.uk/esi/screen/ESI/en-GB/summary?user=guest

Scroll to the bottom and press on the I accept link to go through to it

Customer: replied 7 months ago.
For Ben JonesDear Ben,The HMRC site is down (see below). However, HMRC has taxed me as self employed and I look, sound, smell and taste like someone who is self employed. Are there any questions you can ask me to confirming I am self employed given the failings of the HMRC site?Regards,Henry HaringtonHMRC Site [This HM Revenue & Customs web service is currently unavailable. We apologise for this inconvenience.Some of our online services may be available, please follow the link below to access them. If the service you wish to use is not currently available please try again later.]
Expert:  Ben Jones replied 7 months ago.

Hi you can try this instead, it considers similar factors.

http://www.kingstonsmith.co.uk/wp-content/uploads/2015/01/Employment+status+indicators.pdf

Customer: replied 7 months ago.
For Ben Jones.Dear Ben,I have completed the KingstsonSmith questionnaire and return a copy herewith including my answers in red.Regards,Henry Harington
Expert:  Ben Jones replied 7 months ago.

Thanks I will get back to you later today

Expert:  Ben Jones replied 7 months ago.

Hi there just checked the file and I can see no answers in red just the original document

Customer: replied 7 months ago.
I have reformatted the pdf and sent the same as two png (screen shot files).HH
Expert:  Ben Jones replied 7 months ago.

Hi there, it does appear that you are most likely going to be classified as self employed. Your rights in terms of protection against unfair dismissal, redundancy pay and minimum notice periods all depend entirely on your employment status. You have to be an employee to be covered under any of these. If you are genuinely self employed, which you most likely will be, you will not have any rights to challenge the termination, to get any redundancy pay or be able to claim unfair or constructive dismissal. It does not matter how long you have worked there unfortunately, if you are self employed then you remain such and your rights are based on that. The only rights as a self employed worker you would have are in relation to notice period. If you have a contractual notice period then you would be entitled to receive that on termination.

However, it is often the case that no written contract exists, or there is no notice clause in it. In such situations, the worker can still expect a 'reasonable' notice period to have their employment terminated. This is because even in the absence of a written contract they will be working under an implied common law contract and to terminate such a contract a reasonable notice period is required. The only exception is if the contract was terminated because of gross misconduct, that is any misconduct serious enough to justify the employment relationship terminating immediately.

What is a reasonable notice period will vary greatly and will depend on the individual circumstances, industry practices, length of employment, frequency of payment, etc. There are far too many variables to consider, which means it is usually impossible to give a precise indication as to what would be reasonable in each case. It is therefore down to the courts to make that decision. The worker can nevertheless raise this issue with the employer and attempt to negotiate a reasonable notice period with them, a period that they will both be happy to accept.

I'm sorry if this is not necessarily the answer you were hoping for, however I do have a duty to be honest and explain the law as it actually stands. This does mean delivering bad news from time to time. I hope you understand and would be happy to provide any further clarification if needed. If you are still satisfied with the level of service you have received I would be grateful if you could please take a second to leave a positive rating by selecting 3, 4 or 5 starts at the top of the page. Thank you

Customer: replied 7 months ago.
Thank you for your reply. I was under the impression that under EU law, that someone who is employed solely by a single firm was construed to become an employe after a given time. Do HMRC not constructive someone as an employee if they only work for one firm? Are there any circumstances under which someone who is self employed gains or acquires employment rights?Does my self employment also render me un-entitled to a claim for constructive dismissal where another person assumes my role and my income is cut?Regards,HenryThank you.
Expert:  Ben Jones replied 7 months ago.

No i am afraid there is no such law. Your employment status relates solely to how you are treated and it makes no difference how long you have been working there or if you are working for a single fir. You could easily be self employed and work as such for an indefinite period, without ever becoming an employee. You only acquire employment right if based on your relationship and the way yo are treated you start to evolve into being an employee, which takes us back to the questions you answered earlier - the more you can show that you are being treated as an employee based on these factors the more you can try and argue you may have become an employee - but there is no definitive period after which that happens and it depend on whether a court is satisfied that you have started to match the criteria for being an employee - nothing to do with length of service or whether this is the sole company you work for. Also as self employed you have no right to claim constructive dismissal or unfair dismissal - this is protection only employee get.

If your original question has been answered I would be grateful if you could please quickly rate my answer by selecting 3, 4 or 5 starts at the top of the page - it only takes a second to do and is an important part of our process. I can still answer follow up questions afterwards if needed. Thank you

Expert:  Ben Jones replied 7 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.

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46233
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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