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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 49805
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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MY question is related to length of service

Customer Question

MY question is related to length of service for redundancy purposes.
I have worked for solely an organisation since 1991 and am being made redundant in July 2015.
In the first instance my successful application was through a local council authority, the role (as a qualified teacher a requirement for the part time post), was to work for an education business partnership organisation, managed by seconded staff from the local authority. The organisation was a limited company of charitable status that had a senior council officer vice chairing an the Board of Directors. The manager's salary and considerable funding for the organisation came through local government.
Within the first 3 weeks of joining I was asked to consider being self employed as funding for the work was as a result of annual bids. Willing to please it seemed the hourly rate might be more financially beneficial to me and I had 2 small children so I though it offered me some flexibility in the hours worked.
However I had to work from the office premises where administration support and IT equipment was provided. Due to my project management role I was required to be available at various dates and events in schools, I was unable to seek any other self employed role and paid for my own national insurance contributions etc. I worked solely for the organisation for 8 years and my contract renewed on an annual basis
In 1998 I wrote to the manager of the charity and requested that my employment status be reviewed as I was the only person in the team self employed. (All other staff were Council seconded to the organisation, by then I was the longest serving team member).
It took over a year for the authority to recognise my teacher status and in 1999 they issued me with another contract under teachers terms and conditions. Like the rest of the team I was now considered to be a seconded employee.
For redundancy purposes the local authority will only recognise the length of service between 1999-2015. I consider this to be unfair, particularly when they have backdated another team members service by 5 years when the Council HR discovered the team member had been on a temporary contract working for a recruitment agency owned by the authority, ( the council paid the national insurance contributions of the team member).
Do I have any rights to appeal and have my length of service of 24 years properly recognised please?
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.
Hello, my name is ***** ***** it is my pleasure to assist you with your question today. Have you taken the employment status indicator test to see if the time you were self employed could actually be considered as employment. You can access that here:
Customer: replied 2 years ago.
Yes reference E2705151031177 employee status
Expert:  Ben Jones replied 2 years ago.
Thanks for getting back to me. Your length of service for redundancy pay purposes is determined fully by law and is not something which the employer decides. When calculating your continuity of service, only years where you were working as an employee would count and any periods where you were working under a different status, such as self employed, agency worker, etc would not count.
However, 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.
The most common ones are used in the tool you used earlier to determine your status. If you input the details of your working relationship for the period you were due to be self employed and after taking the test your status was shown as being that of an employee then you could use this to argue that your time as self employed was actually a time when you were working as an employee and should be counted towards your overall length of service.
Unfortunately this test itself is not binding and the employer could still refuse to accept that and maintain that your continuous service would only count from 1999 onwards. If that is the case then the only way to challenge them would be to take the matter to the employment tribunal once they have terminated your employment and paid you what they believed you were due.
I hope this has answered your query. Please take a second to leave a positive rating, or if you need me to clarify anything before you go - please get back to me and I will assist further as best as I can. Thank you
Expert:  Ben Jones replied 2 years ago.
Hello, I see you have accessed and read my answer to your query. Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this? I just need to know whether you need further help or if I can close the question? Thank you