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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 47404
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I have recently lost a contructive dismisal claim. I am the

Resolved Question:

i have recently lost a contructive dismisal claim. I am the employer and respondant. During the claimants evidence he stated; no contract of employment, no pay slip, never had sick pay, no pension and we never paid NI contributions on his behalf. I want to appeal on the basis we never employed him. Agree?
Submitted: 1 year ago.
Category: Law
Expert:  Jo C. replied 1 year ago.
Hi.
Thank you for your question. My name is ***** ***** I will try to help with this.
Surely you did employ him?
Customer: replied 1 year ago.

I thought so but my accountant says he was effectively a consultant.

Expert:  Jo C. replied 1 year ago.
Did you raise this defence before the tribunal?
Customer: replied 1 year ago.
No. I only came apparent after advising the company accountant. What criteria must he/we meet to confirm that he is employed?
Expert:  Ben Jones replied 1 year ago.
Hello, my name is ***** ***** my colleague has asked me to assist with your query as it is more my area of law. When did the tribunal make its decision?
Customer: replied 1 year ago.
29 Sept the hearing ended but I've still not had the judgement.
Expert:  Ben Jones replied 1 year ago.
The reasons you have listed for believing the person is not an employee will not necessarily make him something else. It is entirely possible for someone to be an employee without a contract of employment, receiving payslips, getting sick pay, etc.
Establishing your 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 depend on the overall employment relationship, not on what they referred as.
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.
You may use the Government’s Employment Status Indicator tool to find out what his status is most likely to be:
https://www.gov.uk/employment-status-indicator
By following the link and answering the questions you may get a good idea of what his employment status is, although it is worth noting that these are still only an indication and only a court can provide a definitive answer.
If you strongly believe that he was not an employee and should not have been awarded judgment in his favour, you could try and appeal to the EAT on a point of law.
I trust this has answered your query. I would be grateful if you could please take a second to leave a positive rating (selecting 3, 4 or 5 starts at the top of the page). If for any reason you are unhappy with my response or 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
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 47404
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
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