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Ben Jones
Ben Jones, UK Lawyer
Category: Law
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I have worked same carpet & flooring company as a fitter

Resolved Question:

I have worked for the same carpet & flooring company as a fitter for twelve years now on a self employed basis, I have worked for no other company in this time.
Someone told me the other day that this is illegal, as the firm I have been working for should have employed me and been paying me holiday and sick pay and paying the tax and ni contributions. Is this the case? If so, have I also been breaking the law?
Regards.
David.
Submitted: 2 years ago.
Category: Law
Expert:  Ben Jones replied 2 years ago.
Ben Jones :

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

Ben Jones :

Can you please go through this online tool and let me know whether it believes you are an employee or self employed:

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

Customer: It is saying that services are unavailable at present.
Customer: i know that I am self employed though
Ben Jones :

you may not be....it is not what you are called or labelled as, it's what the facts say...

Ben Jones :

let's try a different way

Customer: It says the worker is self employed
Ben Jones :

If you are genuinely self employed then you do not get the same rights as workers or employees. They are the ones entitled to sick pay, holiday pay, etc. If you are self employed you do not get these benefits – you do not get holidays by law, you do not get sick pay, you are responsible for your own taxes. There is also no obligation on the firm to employ you as a permanent employee and give you these benefits. If it suits them they can continue employing you on a self employed basis indefinitely.


Customer: I knew all of the details about sick and holiday pay.
Customer: the person I spoke to, who seemed to know their stuff said that HMRC don't like people working for company's indefinately on a self employed basis especially in construction and that you have to work for more than one firm if you are self employed.
Ben Jones :

they may have been rferring to IR35

Ben Jones :

there was a drive to deal with false self employment in the construction industry

Ben Jones :

But that is when someone who was actually working as an employee (and the test would have shown that to be the case) was still employed as self employed

Customer: I even remember my accountant saying something about it once. So who's in the wrong? Me or the firm I've been working for?
Ben Jones :

I think the issue here is that you appear to be genuinely self employed, which is not illegal and would not be covered by what your friend has said

Ben Jones :

to be covered you have to show that you are not really self employed but are an employee and that you are falsely being employed as self employed

Customer: Okay, thanks.
Ben Jones :

there are some new rules being dragged through Parliament at present but they are not yet laws so you will have to monitor this specific area for developments

Ben Jones :

they could eventually provide further clarity on the employment status of construction workers but for now you have to go by the traditional employment status indicators which you went through earlier

Customer: So it would seem it's okay on my part but what about the firm I have been working for? Have they been at fault?
Ben Jones :

again, if they employed a genuinely self employed person like you, that is not illegal and they would not have tax liabilities in that respect - they would only be at fault if they employed an employee under the pretence of self employment

Customer: Thanks for your help.
Ben Jones :

you are welcome

Customer: I was fully employed by this company on the cards from September 2001 they bought all my tools and paid me holiday and sick pay for about two years, then they decided that it wasn't working so they made me go self employed. Does this make a difference? I was even using their van but when I went self employed I had to pay rent on the vam
Customer: van, sorry.
Customer: i was still using their tools that they had bought. I mention this because the test I did doesn't take account for historical events like this.
Ben Jones :

historical events do not matter, what matters is how you are currently employed by them - it may well have been that you were an employee in the past and you met the criteria fr being an employee but it was then changed and you became self employed again - so all that really matters is what the most recent arrangement is and what your current status is, this is why the test take into account your current circumstances.

Ben Jones :

Does this clarify things?

Customer: Yes, thanks
Ben Jones :

are welcome

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