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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 67910
Experience:  Qualified Employment Solicitor
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I have a pet grooming business in London. I have employed

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Hi, I have a pet grooming business in London. I have employed people and self-employed people working for me. One of the Self-employed people has just recently left. He is an actor friend of mine who I gave some admin work to and some dog washing jobs to. He worked occasionally, different days of the week. mostly about 2 days per week. He has worked invoicing me in this way for just under 2 years. He has decided to leave and is now demanding 2 years holiday pay. He didn't issue him with a delf employed worked agreement contract until 2 weeks ago as I had forgotten to do so and he left before signing it. Please can you advise me if he is indeed due holiday pay?
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: He is an actor and self employed. So he would be classed as a self employed contractor
JA: Anything else you want the Lawyer to know before I connect you?
Customer: no I think that about sums it up

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

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.

Based on the above, what do you believe he is most likely to be?

Customer: replied 8 days ago.
1. He could have provided an alternative person to do the job but that person would have had to have been ok'd by me.
2. He was free to accept and turn down work as he liked. It was understood on both of our parts that I was under no obligation to offer any work.
3. I had control of the work provided to him as it was my business and his use was as an extra pair of hands. He was not used as a skilled worker.
4. I don't think he could bring in assistance unless they were first Ok'd by me as per no1.
5. As he would be preparing dogs and doing admin, tools would simply be a bath, dryer, comb, brush and pen...all provided by me as the salon owner.
6. As the contractor, He was well within his rights to change the rate of pay at any time and this was understood by us both. It would have been my prerogative to either accept or deny any work going forward at a rate that was too high for the business to afford.
7. He became a fixture of the salon for a few days per week. As and when we were busy enough to use his services He could not have been promoted to manage any staff.Your advice would be appreciated.
Customer: replied 8 days ago.
OK, Happy to continue online

Thank you. No definitive answer here unfortunately and it is all a bit of both, perhaps just slightly leaning more towards self-employed than worker/employee.

To be honest there have been numerous challenges like this where people believe they are workers and not contractors and have gone to court to challenge the employer. Some have won, some have lost – each case depend son its own circumstances.

You will never know his actual status unless it has been examined by the courts, but that is up to him to do. So you can simply stand your ground and refuse to accept that he is due any holidays, advising him that his status was clearly that of being self-employed and as such he gets no holiday allowance in the first place.

It is then up to him to chilling you and take his case to court to try and argue that he is a worker and should have been due holiday pay. He my never go that far – most don’t, but it is your risk to take.

Does this answer your query?

Customer: replied 8 days ago.
That was really helpful. Thank you very much for your time.

You are most welcome

Customer: replied 7 days ago.
Sorry, I have one more question...if indeed he was successful and I had to give holiday pay, would he be required to give me actual notice? He has left without working any so by rights, would it be fair to explain that I would be happy to use his holiday for a notice period? Obviously, as a self employed contractor, I wouldn’t require any notice. Surely it works both ways doesn’t it?

If he was an employee he would have had to give you a week’s notice to leave. You could have asked him to use up holidays for it but not retrospectively. So any holidays would sill be owed if they were not used up at the time, including for notice period

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