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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 44953
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I have been working at a social club for the past six months.

Customer Question

I have been working at a social club for the past six months. They said I would be self employed if I took on the running of the kitchen as a chef. I provide food to its members Tuesday to Sunday inclusive. I pay for the gas electric and rent each month. Recently they have asked me to increase the hours that I am at the club which I have done but the club has taken a turn for the worse and dropped in numbers of attendance.
This last couple of weeks I have earned £0 and the rent is looming so I took on an additional job which only over lapped on two evenings. I provided a replacement for myself and went and did some extra hours at my friends restaurant to push up my income this week.
Yesterday I went in to work and finished the Sunday lunch time service to be given a letter to dismiss me because I hadn't worked the extra hours myself at the club and had replaced myself with a replacement cook, he only served 0 people for 2 days and 2 people for 1 evening.
They have said that they have provided me with a fanchaise and that I have have broken the contract by not working the set hours.
Am I employed or self employed and can they dismiss me if I think I'm self employed and I want to tell them the hours I will be open for business.
Submitted: 3 years ago.
Category: Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is Ben and it is my pleasure to assist you with your question today.

Ben Jones :

Before proceeding please note that as I am a practising solicitor, I am often in and out of meetings, travelling between clients or even at court when I pick your question up. This may even occur at weekends. Therefore, I apologise in advance but there may be a delay in getting back to you and providing my advice. Please be patient and I will respond as soon as I can. You do not have to wait here and you will receive an email when I have responded. For now please let me know what you hope to achieve?

JACUSTOMER-r4bqvejq- :

I would like to know if the club told me that I was self employed and in fact I should have been employed by them.

JACUSTOMER-r4bqvejq- :

I went in as a chef to the club to provide a service which I have done. The amount of clients are very hit and miss and some times I earnt nothing if the clients were only in the club to drink.

JACUSTOMER-r4bqvejq- :

Have I been unfairly dismissed.? Should they have given me written notice. If I'm self employed can they insist that I work the hours that they deemed I should/ Sometime I had to stay until 9.00 at night and I may have earnt £1.20 for chips and it cost me £20 to run the gas and the electric.

JACUSTOMER-r4bqvejq- :

I'm confused about my terms of contract and if I have any rights at unfair dismissal

JACUSTOMER-r4bqvejq- :

Can I challegune their decisions?

JACUSTOMER-r4bqvejq- :

If I've been dismissed without written warnings is that correct or fair

JACUSTOMER-r4bqvejq- :

Can I claim job seekers allowance whilst looking for another job if I have been dismissed

Ben Jones :

Many thanks for your patience. A person's rights will largely depend on their employment status. Establishing one's 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 not depend on that, but on the overall employment relationship, how the employer treats them, etc.

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.

The tests that are most commonly used can be found here:

http://www.hmrc.gov.uk/employment-status/index.htm#1

By following the link and answering the questions one may get a good idea of what someone's 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.

In terms of dismissing you, I am afraid your rights are not great whether you are an employee or self employed. If you are an employee you are not protected against unfair dismissal until you have at least 2 years' service with them. If you are self employed you are not protected against unfair dismissal in any event. So in both cases you can be dismissed simply by being given the notice period you were due under contract. No warnings, written or verbal, needed to be issued before dismissal. So the only issue here is whether you were given notice that you were due. This would be the notice contained in your contract and in the absence of a notice clause, it would be a week if you were an employee, and 'reasonable' notice if you were self employed. That could be anything but in the circumstances it is probably unlikely to be more than a month.

Finally, you can claim jobseekers allowance if you are still looking for a job - that is exactly what it is there for, to help the unemployed whilst they are able to earn again.

JACUSTOMER-r4bqvejq- :

If my contract says two months notice and I was told yesterday at the end of service and asked to clear the kitchen by today do I have any rights to anything?

Ben Jones :

you have the right to be given the notice period in your contract and be allowed to work it or be paid for it

Ben Jones :

I hope this has answered your query. Please take a second to leave a positive rating, or if you are unhappy for some reason with the advice - please get back to me and I will assist further as best as I can. Thank you very much

JACUSTOMER-r4bqvejq- :

What happens if they have asked me to leave I didn't get offered the two months that is in the contract and they insist that is the end of that and there is nothing I can do about it. They are saying that because I am self employed I have to had over the keys of the kitchen and go.

JACUSTOMER-r4bqvejq- :

Is there no law to protect me? Surely if I have a contract and they are saying that they do not have to renew the fancaise to me so effectively I'm out of work without a leg to stand on, no job, and no one is accountable. Is that correct ?

Ben Jones :

You do have rights as mentioned in my responses so far - you are entitled to receive the contractual notice period your contract states. The employer can terminate your employment but they have to give you that notice period so if they have not done so they will be acting in breach of contract and you can make a claim in the small claims court to pursue what you are owed

Ben Jones :

Please let me know if this has answered your query or if you need me to clarify anything else for you in relation to this?

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