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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 8552
Experience:  I have been practising for 30 years.
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Are there penalties a self-employed person in the UK if the

Customer Question

Are there penalties for paying a self-employed person for work in the UK if the person paying for the work has knowledge that the self-employed person does not have the right to work in the UK?
Submitted: 4 months ago.
Category: Law
Expert:  F E Smith replied 4 months ago.

What is the nature of the relationship between you and the worker and what is the nature of the work? How you know the person does not have the right to work?

Customer: replied 4 months ago.
The worker is a salesman and a tour guide for a tour company. He was formerly a student in the UK but is now on an overstayed tourist visa with no permission to work. There is evidence via electronic communication that the employer is aware of the worker's status. He is now on a zero hour contract and the employer is under the impression that this exculpates him.
Customer: replied 4 months ago.
Additionally, the worker's situation arguably fulfills many of the criteria for self employment, including no hourly wage, ability to refuse work, setting own holiday time, etc.
Customer: replied 4 months ago.
The employer does, however, routinely pay the worker for services, and is fully aware of his status.
Expert:  F E Smith replied 4 months ago.

Both the employer and the employee are under misapprehension. Being on zero hour contract does not make everything okay because if it did, everyone who was an illegal worker would do it.

The criteria for whether someone is employed or self-employed comes down to basically whether a person does work for more than one provider, who has control of work, and more importantly, tells them when to work. It’s unlikely that a tour guide is genuinely self-employed.

The penalties are quite severe if you will read here.

https://www.gov.uk/penalties-for-employing-illegal-workers

Can I clarify anything for you?

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Best wishes.

FES.

Customer: replied 4 months ago.
One final question: the tour guide has signed a sole trader agreement. Does this constitute him as self-employer, or is it in any other way exculpating?
Expert:  F E Smith replied 4 months ago.

It does not matter what agreement he signed. It is the nature of how he is working which is relevant, not the form or wording of the agreement.

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