Self employed or 'worker' employment status?

[Bonnee73]

I've been working for a charity on a sessional basis for about 8 months. I'm responsible for the day to day running of a project that delivers a service to a particular client group. As well as working with clients in the charities premises during the scheduled sessions, my responsibilities include compiling staff & volunteer rotas, planning client activities, ordering/buying supplies, attending service provider network meetings and completing monitoring returns for funders. I was told what hourly rate I was going to be paid when I started, and was asked to invoice the charity monthly, but not to put the hours on the invoice, just the total amount I was owed. I keep a log of the hours I have done for my own benefit, but I never have to submit it to the charity.

I'm now being asked to attend mandatory training over several weeks regarding work with the specific client group.

I'm beginning to think I'm a "worker" rather than self employed for this charity, but when I had a brief conversation with the general manager about it, he insisted that all charity sessional workers like me operate on a self employed basis.

If it makes a difference, I also plan/run special interest events in the private sector on a self-employed basis, and I work on a PAYE basis for a local training provider.

Am I a worker or self-employed for the charity? I know it's a really complex area, but it would be useful to know what my options are. Thanks.

[teaboy2]

Re: Self employed or 'worker' employment status?

Do you have a written contract between you and the charity in question? if so can you post it up minus personal details and the charities details?

It does sound like you are self employed given you are meant to invoice them, but even then the invoice should show amount of hours worked providing a service to them, for transparency purposes and of course to tally up with the sign in and sign out book or however the charity records the hours their employees, workers, contractors work!

Though we can't say for sure without seeing your contract.

[Bonnee73]

Re: Self employed or 'worker' employment status?

No, I don't have a written contract of any sort - and there's no hours book or anything like that, it's all done verbally and "on trust".

[FlamingParrot]

Re: Self employed or 'worker' employment status?

Do you have a written contract between you and the charity in question? if so can you post it up minus personal details and the charities details?

It does sound like you are self employed given you are meant to invoice them, but even then the invoice should show amount of hours worked providing a service to them, for transparency purposes and of course to tally up with the sign in and sign out book or however the charity records the hours their employees, workers, contractors work!

Though we can't say for sure without seeing your contract.

No, I don't have a written contract of any sort - and there's no hours book or anything like that, it's all done verbally and "on trust".

Even in these circumstances, you could still be considered an employee, even when invoicing as a limited company for a largely fixed amount every month (except for unpaid leave) with no details of hours worked, an employment tribunal has been willing to hear a case where it was, as above, all done 'on trust' without any written contracts. The outcome of the hearing is as yet unknown but an experienced employment solicitor is of the opinion that it could go 75%-80% in favour of the claimant.

What difference that would make in practical terms depends on the circumstances, in the case above the claimant had been with their employer longer than two years.

There is case law relating to people who have signed contracts for services clearly stating they were self-employed, including agency workers, where the EAT has ruled in their favour, some going back a very long time.

There was also someone who worked with me as an agency 'temp' with a major financial institution and was there four years, in 2001 her employment was terminated, she submitted a claim and was offered a settlement. We shall never know whether the ET would have regarded her as an employee or not but if the bank had been sure that they wouldn't, why offer to settle?

[FlamingParrot]

Re: Self employed or 'worker' employment status?

Some info and links to case law:

• http://www.hmrc.gov.uk/manuals/esmmanual/esm0516.htm
• http://www.hmrc.gov.uk/manuals/esmmanual/ESM0515.htm
• http://www.hmrc.gov.uk/manuals/esmmanual/ESM7160.htm

This one could be applicable here: http://www.hmrc.gov.uk/manuals/esmmanual/ESM7040.htm

ESM7040 – Case Law: MarketInvestigations Ltd v Minister of Social Security

[1969] 2QB173

Point at issue

Whether an interviewer, who was engaged on a casual basis, wasemployed under a series of contracts of service or under a seriesof contracts for services.
Facts

Market Investigations Ltd was a market research company. Itemployed a small number of full-time interviewers but, for the mostpart, drew on a panel of casual interviewers and the case concernedthis latter group.

The facts found included the following

• all interviewers were issued with or hadaccess to the company’s ‘Interviewer’sGuide’ which outlined interviewing techniques
• there was no obligation to accept workwhen it was offered
• interviewers were usually asked to workfor two or three days during a 10 or 14 day period
• interviewers were free to work for otherfirms during this period
• the company did not allow interviewers tosend a substitute without prior permission of the company
• on some occasions a briefing meeting washeld prior to the start of the assignment
• during a period of 81 weeks Mrs Irvingworked for 61 full days and 8 half days and was paid on a dailybasis plus expenses
• on the first few assignments Mrs Irvingwas accompanied by one of the company’s supervisors
• the contract did not provide for time off,holidays or sick pay
• the company thought they could not dismissMrs Irving in the middle of an assignment
• the mutual intention was for contracts forservices.

Decision

The Minister of Social Security decided that Mrs Irving did workunder a contract of service and the company appealed against thatdecision. Cooke J held that Mrs Irving was employed under a seriesof contracts of service.

[teaboy2]

Re: Self employed or 'worker' employment status?

I agree with [MENTION=37786]FlamingParrot[/MENTION]

If their is not written contract making it clear your a contractor, then your an employee regardless. I.e. they offered you the position, you took it, they then told you to invoice them for your hours, after you agreed to accept the job. And only now have you been told your self employed and not an employee, despite taking the job on under the understanding you were an employee due to not being told otherwise at the time you took of the job.

And as pointed out even if it states your self employed in a written contract, their is a big difference between an employment contract and a service contract. Hence why a lot of companies have fallen foul of this at tribunal!

This is why i asked you about your contracted, and to post it up if you had one. The fact you don't have a written one, says your clearly then an employee!