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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 73464
Experience:  Qualified Solicitor
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I am a "consultant" for a company in England, but I am the

Customer Question

Hi, I am a "consultant" for a company in England, but I am the HR manager. My role is one of an employee, but I receive no benefits, rights or protection and I get paid less. What can I do?
JA: Have you discussed this with a manager or HR? Or with a lawyer?
Customer: No
JA: What is your employment status? Are you an employee, freelancer, consultant or contractor? Do you belong to a union?
Customer: Consultant
JA: Is there anything else the Lawyer should know before I connect you? Rest assured that they'll be able to help you.
Customer: No, I think that's it
Submitted: 13 days ago.
Category: Law
Expert:  Ben Jones replied 13 days ago.

Hello, I’m Ben. It’s my pleasure to assist you today. I may also ask for some preliminary information to help me determine the legal position.

Expert:  Ben Jones replied 13 days ago.

What are you ideally hoping to achieve in your circumstances? Please note this is not always an instant service and I may not be able to reply immediately. However, rest assured that I am dealing with your question and will get back to you today. Thanks

Customer: replied 13 days ago.
I am not sure what my options are?
Customer: replied 13 days ago.
I would like to add that I work remotely (as does everyone in the company). The Director (Sarah) makes all decisions at the company and often chooses to reduce people's hours or terminate agreements for reasons that are not always legitimate or evident. I feel that I am being treated differently purely based on my nationality and location. I am expected at times to perform more duties and have more responsibility than the UK managers. I, like many others in my position, are in constant distress as the Director (Sarah) may change our roles, amend hours or terminate us at the drop of a hat.
Expert:  Ben Jones replied 12 days ago.

Many thanks for your patience, I am pleased to be able to continue assisting with your query now. A person’s legal rights in the workplace mainly 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 easy and can be a complex task.

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 how they were referred to.

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 through the courts over the years and will still vary on a case-by-case basis. Therefore, whilst they serve as a starting reference point, in reality only a court can provide a definitive answer on someone’s employment status.

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.

HMRC also has an online tool which you can use to try and determine your status for tax purposes – this is still not a definitive answer but can be useful in giving you an idea of what the status will likely be:

https://www.gov.uk/guidance/check-employment-status-for-tax

So before we proceed, do you still believe you are an employee?

Customer: replied 12 days ago.
According to the information provided, I fulfil an employee role at the company. Here is a summary for each point:1. I cannot subcontract my duties.
2. I have 40 hours to complete each week and the company provides tasks over and above my basic tasks if I have extra time. I must finish the tasks provided or I will not receive my full bonus.
3. I do not have full control over what I do other than initiatives I come up with. I take direction from the director.
4. I cannot subcontract my duties.
5. I use my own laptop, webcam, etc. but other than that I do not supply platforms or other services that the company pays for.
6. I receive consistent pay week, receive a performance related bonus and an appraised twice yearly.
7. I have been promoted a few times and have managers other members of the team. I also had one benefit of paid leave for a short period before the company stopped that.
Expert:  Ben Jones replied 12 days ago.

Thank you. How long have you worked there for?

Customer: replied 12 days ago.
From 2018, but have received new contracts each time I was promoted
Expert:  Ben Jones replied 12 days ago.

Ok thanks. As far a equal pay is concerned, there is no automatic right to it and it is entirely possible and legal to have different rates of pay for workers doing the same job. However, if you believe that this is specifically because of your nationality, that could be potential race discrimination. The only issue is whether the employer can justify it for being on other grounds so until you know what they may come up with, it would be difficult to foresee.

As far as job security is concerned, if an employee has been continuously employed with their employer for at least 2 years they will be legally protected against unfair dismissal. This means that to fairly dismiss them the employer has to show that there was a potentially fair reason for dismissal and that a fair dismissal procedure was followed.

According to the Employment Rights Act 1996 there are five separate reasons that an employer could rely on to show that a dismissal was fair: conduct, capability, redundancy, illegality or some other substantial reason (SOSR).

Therefore, the first step is to establish which of these reasons is going to be used to justify the dismissal. Not only that, but they must also justify that it was appropriate and reasonable to use it in the circumstances.

Finally, they need to ensure that a fair dismissal procedure was followed and that the outcome was one that a reasonable employer would have come to in the circumstances. Each of the potentially fair reasons will have its own requirements in terms of the procedure that needs to be followed in order to make it fair.

An unfair dismissal can be challenged in the Employment Tribunal should the need arise.

Expert:  Ben Jones replied 12 days ago.

Hopefully, I have answered your query in a way that is simple and easy to understand. If anything remains unclear, I will be more than happy to clarify it for you. In the meantime, thank you once again for using our services.