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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 61193
Experience:  Qualified Employment Solicitor
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My contract of employment states that I am a third party

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hi there my contract of employment states that I am a third party contractor but my employee dictates what hours I work, when i can work, and how i can work.
JA: Have you discussed this with your HR staff? Or with a lawyer?
Customer: no
JA: Is the relevant person an employee, freelancer, consultant or contractor? Does the person belong to a union?
Customer: no
JA: Anything else you want the Lawyer to know before I connect you?
Customer: even though i seem to be an employee rather than a contractor they say i have to sort out my own taxes. is this right? I assumed that they would sort this out and to my error I did not notice that part that says i have to sort out my taxes I assumed they would do it. but the payslip has been weard it doesnt show a break down of hours or tax contributions etc

Hello, I’m Ben, a UK lawyer and will be dealing with your case today. Firstly, I need to ask some initial questions to determine the legal position.

What do you specifically want to know about this please?

Customer: replied 11 days ago.
regardless of what the contract says, ie one of the clause says ...'on the basis that the service provider is not an employee of the producer, but rather a third party contractor..' am i still an employee/ worker with employement rights? and should they not be the one sorting out my taxes and ni contributions. the contract says i sort out my own taxes but I feel that I am an employee not self employed
so i want to know.

1) Can I demand that they pay my taxes and ni contributions
2) Do I have rights to as an employee (so able to sue them for breach of contract etc)

Thank you. A person’s legal rights in the workplace largely depend on their employment status, such as whether they are a worker, an employee, an agency worker, self-employed, etc. However, establishing a person’s employment status is not always an easy task. Problems may arise when there is uncertainty over it or when someone disagrees with what they are officially referred as by the employer.

 

It is usually irrelevant what a person is labelled as by their employer because their actual status would depend on the overall employment relationship and how they were treated, rather than what they were labelled as.

 

The main problem is that there is no single official way to determine someone’s status and it is usually done by checking if certain factors are satisfied. These factors have been established over years of case law and are still open to interpretation. Therefore, whilst they serve as a good reference point, in reality only a court can provide a definitive answer.

 

Generally there are three main types of employment status which are relevant in these circumstances: employee, worker and contractor (self-employed). As workers’ and employees’ rights largely overlap, the main issues are in distinguishing whether someone is self-employed or a worker/employee. The following factors are usually taken into account:

 

1. Personal service – contractors will provide their own services, but may also sub-contract work to others, or bring in outside assistance. Employees only provide their personal services.

 

2. Mutuality of obligation – contractors are free to accept or turn down work if they want to and the employer is under no obligation to offer them any work. Employees are obliged to accept work offered by their employer who also has a duty to offer work in the first place.

 

3. Right of control – contractors are likely to be in control of most aspects of the work done. Employees’ activities may be controlled by their employer, such as "what", "how", "where" and "when" work is done.

 

4. Right of substitution – contractors can sub-contract work, or bring in assistance. Employees, on the other hand, are unlikely to be able to offer a substitute for the work they do.

 

5. Provision of own equipment – contractors will normally supply all small tools and bring in or hire plant and machinery. Employees may sometimes supply own small tools or equipment but the employer will provide all plant and machinery.

 

6. Financial risk – contractors will quote on a job-by-job basis and can make more profit by more efficient working, or may incur loss if they overrun on time. Employees are paid whatever work is done, bear little risk and poor performance generally only affects appraisals or additional payments like bonus/commission.

 

7. Part and parcel of the organisation – contractors may become "a fixture" in that their work brings them to the company regularly, but acquire no additional responsibilities or privileges as a result. Employees are capable of being promoted or manage other staff. They also benefit from being in a pension scheme and get other benefits/perks usually given to employees.

 

The above are the most common factors used when determining a person’s employment status and should hopefully provide a reasonable indication of what the status in this case is. They can be useful in negotiations with the employer. However, as mentioned, in the end only a court can decide what the true employment status is so if you strongly believe that you are an employee then you have to take it further formally to be able to assert any of your rights.

 

Does this answer your query?

 

Customer: replied 10 days ago.
perfect.

So let assume that I am a worker/employee. Does my employer have to pay my ni contributions and taxes?

Yes, they should be deducting tax at source under PAYE

 

Customer: replied 10 days ago.
so if I am an employee, and they have breached their contract ( my contract ends on the 31st of december), obviously after going through their griviance procedure, can i resign, sue for breach of contract?

How have they breached it?

 

Customer: replied 10 days ago.
in so many different ways.
1) the employer decided to terminate my contract without the contractual greiviance proceedure. they were trying to silence me for complaining about health and safety at work. But after letting them know that it was a breach of contract. they appologised and got me back. I found out much later that they were only trying to make an example of me to the other workers and scare them into coming into line.
2) the contract states that 50% of our rehearsal fees will be paid after 60 days from from our first show (2nd of september 2019) . However, it has not been paid. and they have decided to hold the payment until everone is in agreement that there are no discrepreces in the pay, and i have sent an email stating that I am okay with the amount they wish to pay. I have sent several emails asking why the 50% is being with held and when to expect it but they have said nothing in reply.

If you are trying to sue for breach of contract then it makes no difference if you are an employee or self-employed – such a claim can be pursued either way

 

Customer: replied 10 days ago.
1) then could i resign/terminate my contract
2) claim compensation in the form of money that I could have earned if the contract had not been terminated by myself? obviously subject to mitigating my loss etc.

How long have you worked there for?

 

Customer: replied 10 days ago.
a little over two months. The contract is until the 31st of december 2019

If you are an employee then it will actually go against you to resign and claim for loss of earnings because that would have to be done under a constructive dismissal claim and you need 2 years service to be able to claim which you don’t have. If you were claiming breach of contract as an employee then it would only be for actual losses already incurred, not future losses like these. So it would actually be more convenient for you to be self-employed if you were to claim for what you proposed

Customer: replied 10 days ago.
i see.

thank you so much i have more questions

1) what does the term 'subject to change' mean. doest that mean hours can be cancelled with out notice or that it will change

2) the contract says that , 'the artist will not receive compensation in the event of a sudden and unexpected cancellation of a scheduled shift.' does that mean that they could cancel a shift a day before it is scheduled to happen? it doesnt state what notice will be given in advance

1) It means they could be changed, these changes could be anything, it can be an increase or reduction

2) Yes it could indeed mean that shifts can be cancelled in advance, even with short notice, without any compensation being due

Customer: replied 10 days ago.
so subject to change does not mean cancellation. just increase or reduction of hours

Well a reduction could mean reduction to zero in terms of hours…

Customer: replied 10 days ago.
what a clever company. very well,

1) can i sue the for unlawful deduction of wages after my contract ends? I cant afford to take the to court at this point in time.

2) which has the juridiction of i do not resign, the county or highcourts or the tribunal? if i wanted to sue for breach of contract.

3) If I do sue for breach of contract what is the remedy ie what sort of compensation would i get apart from money that they have not paid.

1) Yes you can, it does not have to be done whilst employed

2) It would be either the Employment Tribunal or the County Court, it’s your choice but the Employment Tribunal has a deadline of 3 months whereas in the County Court it is 6 years

3) That’s it – you will only be able to recover what you were owed, you don’t get anything extra

 

Customer: replied 10 days ago.
That is perfect. Thank you so much Ben you have been a great help.

All the best

 

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