is this self employment, or am I a worker |
is this self employment, or am I a worker |
Tue, 4 Sep 2018 - 07:36
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#1
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Member Group: Members Posts: 1,535 Joined: 16 Jan 2009 From: Up north Member No.: 25,505 |
Company A own and run a fleet of liveried HGV with uniformed drivers
Company B lease approx 20 of these liveried HGV from A. Company B has no employees/drivers I was asked to set up a limited company so that I could drive Company B vehicles. I wear the uniform of Company A My start time, days of work and rate of pay are set by Company B My work is set by Company A I am the driver and cannot send someone else in my place. I am required to clock in and out on a clocking in machine provided by company B To me this does not feel like being truely self employed, despite the fact that I use my own Ltd company Does anyone have any thoughts about this or advice cheers This post has been edited by oldstoat: Tue, 4 Sep 2018 - 07:53 -------------------- Bridges burnt, Rubicons crossed. Parthian shots delivered, but always with style
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Tue, 4 Sep 2018 - 07:36
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Tue, 4 Sep 2018 - 08:06
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#2
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Member Group: Members Posts: 56,261 Joined: 9 Sep 2003 From: Warwickshire Member No.: 317 |
For what purposes?
For tax purposes (IR35) it sounds like it would count as employed, for employment rights its a grey area but it sounds more likely SE than employed from the information given. My start time, days of work and rate of pay are set by Company B My work is set by Company A Perhaps you can clarify as that sounds contrary, or are you saying Company A is the one that tells you where to drive and when (within the working day)? Worth looking at the ACAS website as its very useful. Start here http://www.acas.org.uk/index.aspx?articleid=5890 and here http://www.acas.org.uk/index.aspx?articleid=5071 This post has been edited by The Rookie: Tue, 4 Sep 2018 - 08:10 -------------------- There is no such thing as a law abiding motorist, just those who have been scammed and those yet to be scammed!
S172's Rookies 1-0 Kent Council PCN's Rookies 1-0 Warwick Rookies 1-0 Birmingham PPC PCN's Rookies 10-0 PPC's |
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Tue, 4 Sep 2018 - 09:12
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#3
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Member Group: Members Posts: 1,825 Joined: 16 Nov 2008 Member No.: 24,123 |
https://www.theguardian.com/business/2018/j...-tribunal-rules
http://www.bailii.org/uk/cases/UKSC/2018/29.html https://payme.co.uk/2017/11/23/gig-economy-rulings/ https://www.personneltoday.com/hr/citysprin...-says-tribunal/ Pretty sure there's others. I don't think any company has won a high profile "worker" case in terms of self employment. |
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Tue, 4 Sep 2018 - 09:21
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#4
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Member Group: Members Posts: 1,535 Joined: 16 Jan 2009 From: Up north Member No.: 25,505 |
For what purposes? For tax purposes (IR35) it sounds like it would count as employed, for employment rights its a grey area but it sounds more likely SE than employed from the information given. My start time, days of work and rate of pay are set by Company B My work is set by Company A Perhaps you can clarify as that sounds contrary, or are you saying Company A is the one that tells you where to drive and when (within the working day)? Worth looking at the ACAS website as its very useful. Start here http://www.acas.org.uk/index.aspx?articleid=5890 and here http://www.acas.org.uk/index.aspx?articleid=5071 company A sets the where to drive and when (within the working day) -------------------- Bridges burnt, Rubicons crossed. Parthian shots delivered, but always with style
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Tue, 4 Sep 2018 - 09:38
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#5
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Member Group: Members Posts: 1,825 Joined: 16 Nov 2008 Member No.: 24,123 |
For what purposes? For tax purposes (IR35) it sounds like it would count as employed, for employment rights its a grey area but it sounds more likely SE than employed from the information given. My start time, days of work and rate of pay are set by Company B My work is set by Company A Perhaps you can clarify as that sounds contrary, or are you saying Company A is the one that tells you where to drive and when (within the working day)? Worth looking at the ACAS website as its very useful. Start here http://www.acas.org.uk/index.aspx?articleid=5890 and here http://www.acas.org.uk/index.aspx?articleid=5071 company A sets the where to drive and when (within the working day) In many areas of the gig economy people work via agencies for the people who need the work done. |
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Tue, 4 Sep 2018 - 09:50
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#6
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Member Group: Members Posts: 33,634 Joined: 2 Apr 2008 From: Not in the UK Member No.: 18,483 |
You sound employed by me. The more contentious question might be who your employer is.
-------------------- Moderator
Any comments made do not constitute legal advice and should not be relied upon. No lawyer/client relationship should be assumed nor should any duty of care be owed. |
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Tue, 4 Sep 2018 - 09:55
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#7
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Member Group: Members Posts: 56,261 Joined: 9 Sep 2003 From: Warwickshire Member No.: 317 |
That would probably depend on who pays his LLC which I would hazard a guess at is Co A.
-------------------- There is no such thing as a law abiding motorist, just those who have been scammed and those yet to be scammed!
S172's Rookies 1-0 Kent Council PCN's Rookies 1-0 Warwick Rookies 1-0 Birmingham PPC PCN's Rookies 10-0 PPC's |
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Tue, 4 Sep 2018 - 10:13
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#8
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Member Group: Members Posts: 1,900 Joined: 2 Aug 2016 Member No.: 86,040 |
it looks likely to fall foul of the IR35 legislation which will 'merely' affect taxation (i.r. 95% of the income taxed as paye).
It is unlikely an ET would find you an actual employee of Company B (or A). It is reasonably likely at ET would find you a worker of B and possibly A. What are you hoping to achieve ? There is no indication of self employment anywhere in the tru sense (though I appreciate that a lot of folk providing services through their own ltd co regard themselves as self employed). |
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Tue, 4 Sep 2018 - 12:29
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#9
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Member Group: Members Posts: 450 Joined: 14 Apr 2012 Member No.: 54,283 |
I subscribe to this bloke - http://www.danielbarnett.co.uk/site/blog/employment-blog/
He reports on cases which are determined and published. There is a search facility which helps to locate subject areas such as the definition of workers. |
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Tue, 4 Sep 2018 - 17:09
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#10
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Member Group: Members Posts: 1,535 Joined: 16 Jan 2009 From: Up north Member No.: 25,505 |
That would probably depend on who pays his LLC which I would hazard a guess at is Co A. Its actually Company B who pay me it looks likely to fall foul of the IR35 legislation which will 'merely' affect taxation (i.r. 95% of the income taxed as paye). It is unlikely an ET would find you an actual employee of Company B (or A). It is reasonably likely at ET would find you a worker of B and possibly A. What are you hoping to achieve ? There is no indication of self employment anywhere in the tru sense (though I appreciate that a lot of folk providing services through their own ltd co regard themselves as self employed). I am asking because I want to know what my status is. I think I am a worker. -------------------- Bridges burnt, Rubicons crossed. Parthian shots delivered, but always with style
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Tue, 4 Sep 2018 - 17:22
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#11
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Member Group: Members Posts: 1,825 Joined: 16 Nov 2008 Member No.: 24,123 |
That would probably depend on who pays his LLC which I would hazard a guess at is Co A. Its actually Company B who pay me it looks likely to fall foul of the IR35 legislation which will 'merely' affect taxation (i.r. 95% of the income taxed as paye). It is unlikely an ET would find you an actual employee of Company B (or A). It is reasonably likely at ET would find you a worker of B and possibly A. What are you hoping to achieve ? There is no indication of self employment anywhere in the tru sense (though I appreciate that a lot of folk providing services through their own ltd co regard themselves as self employed). I am asking because I want to know what my status is. I think I am a worker. You're probably a worker. If you try to assert workers rights such as NMW or holiday pay you'll probably find you're no longer required. This post has been edited by henrik777: Tue, 4 Sep 2018 - 17:22 |
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Tue, 4 Sep 2018 - 17:26
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#12
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Member Group: Members Posts: 1,535 Joined: 16 Jan 2009 From: Up north Member No.: 25,505 |
That would probably depend on who pays his LLC which I would hazard a guess at is Co A. Its actually Company B who pay me it looks likely to fall foul of the IR35 legislation which will 'merely' affect taxation (i.r. 95% of the income taxed as paye). It is unlikely an ET would find you an actual employee of Company B (or A). It is reasonably likely at ET would find you a worker of B and possibly A. What are you hoping to achieve ? There is no indication of self employment anywhere in the tru sense (though I appreciate that a lot of folk providing services through their own ltd co regard themselves as self employed). I am asking because I want to know what my status is. I think I am a worker. You're probably a worker. If you try to assert workers rights such as NMW or holiday pay you'll probably find you're no longer required. funnily, that was pretty much what I thought. I was purely curious to see if my understanding was correct. -------------------- Bridges burnt, Rubicons crossed. Parthian shots delivered, but always with style
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Tue, 4 Sep 2018 - 17:48
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#13
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Member Group: Members Posts: 1,900 Joined: 2 Aug 2016 Member No.: 86,040 |
"I am asking because I want to know what my status is. I think I am a worker."
I understand that. Your status is that you are an employee of your Ltd Co (ignoring the semantic difference between that and an office holder which depebds on whether you are a director and if so have a contract of employment). Your employer is responsible for your employment rights. You may also be a worker for company b or a or even both. But that doesnt advance anything. There any differing definitions dependant upon what is being tested and what is being established (or not). Employee rights and worker rights are different things. If fir example, you had been assessed inside IR35 (or decided for yourself that you were) that would make no difference in your status with the consumer of your services. However if they end client had decided to dispose of your services and you believed unfairly there is some chance an ET might find in yoir favour. Unusual though. If you had suffered some form of workplace abuse you may well be protected. Here might be a good place for you to pose your question and specifics of the issue you are trying to resolve:- https://forums.contractoruk.com |
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Wed, 5 Sep 2018 - 22:07
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#14
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Member Group: Members Posts: 1,215 Joined: 1 Jul 2012 From: Roaming the South Member No.: 55,802 |
Google Pimlico Plumbers employment tribunal. Might be of interest.
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Thu, 6 Sep 2018 - 06:28
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#15
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Member Group: Members Posts: 56,261 Joined: 9 Sep 2003 From: Warwickshire Member No.: 317 |
Google Pimlico Plumbers employment tribunal. Might be of interest. Why Google it when it’s linked above? If you try and assert workers rights, as noted you’ll probably no longer be required, BUT if you are a worker that will probably be wrongful dismissal. Being paid by Company B direct looks like a way of reducing the clarity that you would otherwise be a worker of Company A. -------------------- There is no such thing as a law abiding motorist, just those who have been scammed and those yet to be scammed!
S172's Rookies 1-0 Kent Council PCN's Rookies 1-0 Warwick Rookies 1-0 Birmingham PPC PCN's Rookies 10-0 PPC's |
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Tue, 11 Sep 2018 - 00:21
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#16
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Member Group: Members Posts: 6,981 Joined: 19 Dec 2006 From: Near Calais Member No.: 9,683 |
Surely if you're employed by your own company C then your company acts as a contractor to company B to drive company A's vehicles. Company B sounds like a driver agency.
You being employed by company C means you are not self employed even though you may be the only one working for the company. If your company loses the contract with B then it's tough titties, it happens. It depends what contract C has with B. Does B pay you personally or your company, then your company pays you? It sounds like a complex legal-ish fiddle so that A gets their van driven by someone who they don't wish to employ directly for some reason. This post has been edited by roythebus: Tue, 11 Sep 2018 - 00:24 |
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Tue, 11 Sep 2018 - 05:28
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#17
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Member Group: Members Posts: 3,770 Joined: 17 Mar 2013 Member No.: 60,602 |
Surely if you're employed by your own company C then your company acts as a contractor to company B to drive company A's vehicles. Company B sounds like a driver agency. You being employed by company C means you are not self employed even though you may be the only one working for the company. If your company loses the contract with B then it's tough titties, it happens. It depends what contract C has with B. Does B pay you personally or your company, then your company pays you? It sounds like a complex legal-ish fiddle so that A gets their van driven by someone who they don't wish to employ directly for some reason. The reason is to avoid paying national insurance, pension, sick pay & the other responsibilities of an employer. -------------------- British Parking Association Ltd Code of Practice(Appendix C contains Schedule 4 of POFA 2012 ) & can be found here http://www.britishparking.co.uk/Code-of-Pr...ance-monitoring
DfT Guidance on Section 56 and Schedule 4 of POFA 2012 https://www.gov.uk/government/uploads/syste...ing-charges.pdf Damning OFT advice on levels of parking charges that was ignored by the BPA Ltd Reference Request Number: IAT/FOIA/135010 – 12 October 2012 |
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