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tdlawyer
tdlawyer, Lawyer
Category: Law
Satisfied Customers: 1096
Experience:  11 years experience of general practice.
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I would appreciate some advice regarding my self employment

Resolved Question:

I would appreciate some advice regarding my self employment status. I am a specialist teacher in Dyslexia and associated difficulties. AS such I can charge a going rate between £40-£60 depending whether the student is secondary school, FE or HE level. I have recently been approached by a private school, based on my qualifications MA SpLD, and offered to work with several students.
The first problem presented itself when I was told that the school has a system of collecting payments from the parents and then pay the specialist teachers a rate set by the school, £23.64 for a 40minutes lesson. this of course is not only odd but rather defies the 'self employment' status, but rather employed status. However, if a student does not arrive for lesson we are suppose to forfeit the pay altogether. They stipulate a half term's notice on our part but the contract expires at the end of school year, June. As it happened I have negotiated a higher pay then the £23.65 p/40min but the new contract might not be renewed at the higher rated. Please advise, I am happy to answer any other questions. Halina
Submitted: 3 years ago.
Category: Law
Expert:  tdlawyer replied 3 years ago.

tdlawyer :

Hello, welcome to the website. My name isXXXXX can assist you with this.

tdlawyer :

There is no one test for self-employment. There are a number of factors that a court or tribunal would consider, including: (a) the control test (i.e. who controls the way in which work is undertaken, what teaching methods are used etc.), and (b) the mutuality of obligation test (i.e. do you have to work with who they tell you, do you have to work when they tell you).

tdlawyer :

The mutuality of obligation aspect is perhaps the greater influencing factor.

tdlawyer :

The payment structure isn't determinative, but rather the underlying aspects of control and obligations to work for who they tell you (if that's the case) would be more influential in your employment status.

tdlawyer :

Is the bigger issue for you the rates of pay?

Customer:

The mutuality obligation aspect is that they tell me who to work with and they determine my timetable on the days I am there. They tend to fill the timetable to such extend that I might not have time to have lunch.

tdlawyer :

That does sound more like an employment relationship to me.

tdlawyer :

If you're obliged to work when they tell you to etc.

tdlawyer :

If you're to work with them, then you need to set the grounds rules about this, and make it clear that you're not prepared to be an employee (if that is what you want).

tdlawyer :

And that, if that is to be case, then you will decide who to provide services to, when, and at what cost (although you can agree this would be a certain figure or within defined boundaries etc).

Customer:

The rate of pay is obviously important as as a specialist I am entitled to charge for services at the going rate. Would they expect to tel a plumber what rate he should be working for?

tdlawyer :

That's a good point.

tdlawyer :

This is the kind of thing you need to hammer out immediately before you get issues arising from it later. So you're right to recognise the issue now.

Customer:

One of the issues is the control regarding non attended lessons by the student. If I arrived for the appointment am I not entitled to charge for the lesson, regardless whether the student is ill or just decided not to attend. Consider the plumber again.

tdlawyer :

I agree with you - and for that reason I do think you lean towards being employed rather than self-employed.

Customer:

Considering it is a private school, they still expect fees to be payed regardless of attendance reasons, so why do they expect me to forfeit pay if I am there? Surely the same rules apply.

tdlawyer :

Well, that is a fair point, and further demonstrates that you're likely to be an employee. It also suggests something of an unfair deal!

Customer:

But is it legally binding

tdlawyer :

If you agree to a contract based on those terms, then yes, it will be legally binding.

Customer:

Just to clarify this point, are we (this is not just my problem there but all of the self employed tutors) legally entitled to demand a contract based on the conditions that we get paid regardless of students attendance? Do you agree that some of their practices are unfair, especially the mixture of employed rules for them but restricted rights for us as we are considered self employed?

tdlawyer :

You have a right to demand what you agreed when you started - so it depends on that really.

tdlawyer :

If you've not started there, then you have to negotiate what you want as a condition of moving to work with them.

Customer:

This is actually very nebulous and I am still non the wiser really. Could I possibly have some concrete points to be able to argue with the school, please.

tdlawyer :

Have you entered into a contract with the school yet?

Customer:

Yes but there was no mention of no payment for non attended lessons. This is been mentioned only by the head of the department. before I will consider entering into a new contract for next academic year, if at all.

tdlawyer :

Then if you were told you would be paid, without qualification, then you're entitled to that pay.

tdlawyer :

They would not be entitled to refuse to make payment if nobody turns up if you've already arranged it etc.

tdlawyer :

What is the issue you specifically want to address with the school now, the forfeiture of pay if nobody turns up?

Customer:

Yes, that is one of the issues. Second is that I am expected to agree to their rate of pay. This is more like employment rather the autonomy of self employment.

Customer:

Also, if my present contract terminates in June am I obliged to sing any new contract?

tdlawyer :

Yes, I agree, you have set rates when you joined I assume, and you're entitled to enforce those rates. It's a simple matter of contract law - you stick to the agreement you reached.

tdlawyer :

You would not be obliged to sign any new contract at all.

tdlawyer :

You could seek to renegotiate terms if you wished when your existing contract expires.

Customer:

Ok. Thank you for your help.Halina

tdlawyer :

Thanks Halina. Are you satisfied with the service today?

Customer:

Yes, reasonably. I will be better prepared for next time should I decide to renew the contract. It is convenient to work in a school but it might be to high a price to pay as far as autonomy is concerned. I am inundated by private enquirers and might just stick to these.

Customer:

Can I print this conversation?

tdlawyer :

Private work is, as you say, the clear way to define the boundaries, although there is no reason you cannot do that with the school so long as everybody understands the nature of the relationship properly. This is why you have to impress that upon them from the outset really, so that issues like this do not arise, and this is something that you will now be very well placed to address when you look at renewing.

tdlawyer :

When you end the chat, I can get customer services to email a copy of this to you if you like?

Customer:

Yes

tdlawyer :

Will do. Thank you for you time today. I hope you manage to resolve this.

Customer:

please. And thank you. Bye.

tdlawyer :

Bye.

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