False Self Employment

[ChrisB68]

In October 2019, my employer became ill and was off work sick indefinitely up to 2 months, and advised me to get a temporary job until he could return to work. His own Limited company involved just the two of us completing the work, at locations up and down the country, we were mostly away from home Monday - Friday. I first started work for him early 2008, I was employed 39 hours a week, without a contract, I do not ever recall receiving or signing one, so no holidays agreed, except when he had time off work, I had to align, and holiday pay was paid to me during that time.
During my third year in 2011, there was an altercation between me and a self employed worker that my employer(boss) had temporarily hired over a busy period. Basically, whilst on a construction site, I had an argument with the other worker and he 'threw a punch' so I held him up against the wall, it was over before it started and we were split up. My employer drove me to a train station and I returned home. I was dismissed over the phone, and then brought back to work 3 weeks later but on a CIS sub contractor basis, I am registered with the HMRC, and I file a tax return each year. I raised weekly invoices to my employer of which he deducted 20%, as per CIS contractor regs, and the difference owed to me, was paid into my bank account each week. This continued for 8 years, until October 2019 when work stopped because he became ill, he returned to work approx 2 months later, during that time he called me to say he had not forgotten about me and the work would start back in December. Whilst he was sick, I received a message from his wife, advising me to not contact him so to aid his recover which I completely adhered to.
It is now Jul 2020, and I have not worked for him since October, nor have I received any communications from him, and in the mean time I have worked for an agency as a temporary worker. I received a phone call from a mutual friend, who had spoken to my employer, and who told him that he had 'had to lay me off'. He continues to operate his company, seemingly employing somebody else, my replacement.
I have known the employer for 40 years, we became friends at school and have, until now, remained best friends. We have several mutual friends.
So, my questions are;
1.Was this situation false self employment?
2.Should I have received a pension contribution at any time?
3. Am I entitled to redundancy?
4. have I get any case for unfair dismissal?
5. If any of the questions above answer yes, what should be my next steps?

I have always doubted that I could ever take this to court, and think that it would be held in my favour, simply because of the CIS (Construction Industry Scheme) sub contractor element, however, reading the recent news regarding the hairdresser; Meghan Gorman, and her case over false self employment, our cases have similar scenarios, which gives me a little hope that I would be successful.

Thank you in advance.

[ULA]

It would seem from your post that the last time you worked for the company was last Oct is that correct?

My initial thought is that even if there was a chance to argue false self-employment you might well be out of time to make a claim to the Tribunal given they have strict timescales on making a claim. I will need to check on bringing out of time claims and I also need to review the judgement provided in the Megan Gorman case which will means i will need to come back to you with a further response in the next day or two.

In the meantime in the period between 2011 when you returned as self-employed until you last worked for the company did you have control over the hours and days you worked, including start and finish times, did you provide your own tools to do the work, could you take holiday when you wanted and if you were not available to do the work could you send someone in your place?

[ChrisB68]

Hi Ula, thank you for your response. I hope that I am still within time frame. In answer to your questions;
I did not have control over the hours or days that I worked. I was told to be at work for a certain time, and I was told when I could take a lunch break, and I was told when the day was finished. Whilst working on construction sites, ie regulated areas of work, there were time constraints due to opening and closing of the site, but that is all. I used some tools of my own, but not many, most of the tools I used belonged to my employer. I could take holidays when I wanted but it was very inappropriate to ask or do so, 99% of the time, my holidays had to be taken when my employer took his, as he would not arrange for any available work for me whilst he was on holiday. I have never had to arrange for anybody to do my work in my absence. I have never had a day off sick in 13 years, have only ever been available to work for him, and have only ever had maximum 2 weeks off holiday a year. There were times however, that he had no work in the diary, therefore I did not work, the longest period of this was approximately 3/4 weeks.
I was paid on a daily rate, and the day would start when my employer asked me to start; e.g as early as 4am, and could finish as late as 9pm. Some weeks I regularly worked 60hrs plus, but was paid for a daily rate only.
I hope this answers your questions,
Thanks again.

[ULA]

Thank you for the information and it would appear on face value that you could have been classed as an employee.

I have done some research and the finding in the Meghan Gorman case was at a Preliminary Hearing which i should think was to establish her right to be classed as an employee and not self employed in order for her to bring further claims. The result of the Hearing was to confirm she was an employee and therefore her further claims as a consequence of being an employee can now proceed at the Tribunal.

The time limit is 3 months less a day for making a Tribunal claim and given that you have not worked since Oct 2019 to try and make a claim that you were an employee and therefore pursue any further claims would be very out of time. Tribunals do have the ability to consider out of time claims but you would need to put a very strong argument as to why the claim is effectively 6 months out of time and therefore 9 months from when you could have first made a claim.