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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 44950
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I have been working as a contractor years, I am also

Customer Question

I have been working as a contractor for 30 years, I am also an employer. I was a sole trader from 1986 -19996, a Ltd company 1996 -2015 and back to being a sole trader in Sept 2015. I have only 1 contract I now service, it requires myself and one employee and is for 20 hours per week. I signed a deed of Novation with the Council whom is the source of the contract and the source of all my work for the last 30 years. I was working 40 hours per week until April 2011 this was divided into 2 contracts 1 home to school busses and the other delivery of school dinners. These complimented each other time wise and both made a viable days work when combined.
In Feb 12, I attended a Tribunal as the claimant against my employer, The council, due to an abortive tender where the council had "in Housed" the dinner contract, and TUPE'd In the staff which I employed, whilst rejecting me.
The reason for the rejection was that I was not predominantly employed on the contract, they won the day on the basis that my employment continued.
I continued with my employment as a LTD company until 31st August 2015, when I once again became self employed.
The costs of the company being unsustainable by my limited workload. To financially survive and to protect my personnel income, this was my only option.
Brings me on to my question.
The job I am working on is once again subject to competitive tender and TUPE. The council required Novation as a Deed of the companies obligations to myself, for me to take over the contract as a sole trader. One obligation is my own employment contract. Is my "time in" under this seamless arrangement protected under TUPE as I am now clearly self employed, and due to my age 50, this is all I now do? I have 30 years of continuous seamless service, the council would have this ignored.
Submitted: 10 months ago.
Category: Law
Expert:  Ben Jones replied 10 months ago.
Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today. When did your employment as an employee actually end and you moved over to be self employed?
Customer: replied 10 months ago.
1/9/2015
Customer: replied 10 months ago.
are you involved with TUPE law and familiar with it?
Expert:  Ben Jones replied 10 months ago.
So did the tribunal agree that you were in fact an employee all that time and protected under TUPE?
Customer: replied 10 months ago.
I believe so, the matter seemed to hinge on the earnings of the ltd company, 53% engaged on home to school transport and 47% on the school dinners where my staff transferred from. The view was, predominantly employed on home to school work, so they would not allow me to transfer. The employment continued into oblivion, as the work was complimentary and one is no good without the other. Both being council contracts.
Expert:  Ben Jones replied 10 months ago.
If you were looking for TUPE protection with regard to your own employment with the Council, you will only be able to get it if you were an employee, not self employed. So the crux of the matter really is what was your employment status up until now and whether there were any gaps in employment between being an employee and self employed. Regardless of what your status has been in the past, all that matters is what your status is at present because you can only rely on TUPE now if you are currently an employee. You may have been an employee in the past but if that was broken up by a period of self employment and your current status is one of self employment, then you cannot actually get TUPE protection. The issue is that 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 your 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 your 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. I hope this has answered your query. I would be grateful if you could please take a second to leave a positive rating (3, 4 or 5 stars) as that is an important part of our process and recognises the time I have spent assisting you. 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
Expert:  Ben Jones replied 10 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.

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