To ask if they can really fire my mum for this?(116 Posts)
My mum has worked for the last 30+ years for a religious (Christian) non-profit organisation. She's not paid by the organisation for her work; she raises her own funds by talking about her work at churches, and people who are on board with it can pledge to give her a monthly donation. The donations are made out to the organisation but specified for her. The organisation takes a 10% cut to cover their admin costs, and then deposits the remainder into her bank account. On paper, and for tax purposes, she's considered self-employed (on the advice of HMRC). But for all other intents and purpises she's a de facto (?) employee of this organisation - she works in their office, has a boss within the organisation who assigns her duties and signs off her annual leave, is bound by their policies, etc.
Recently, the organisation employed a new director who has been making some changes, one of which is to "clean up" some of the staffing. My mum has been variously told that her role is being restructured and there will no longer be a position for her, that they're upgrading to new software and they don't anticipate that she'll be able to adapt, and after that, that she "looks too miserable" and will probably have to go. She hasn't been given a timeframe for when she will be asked to leave, but they've made it clear she will be.
Because she's not officially employed by them, she's (presumably) not protected by employment law. She's also not part of any trade union. There is an HR department in the organisation - but they're the ones asking her to leave, so she can't appeal to them for help.
I realise her situation vis her employee status is very unusual but does anyone have any insight into her rights here? Can they really ask her to leave after so many years service with no good reason? She's dedicated her career to this organisation at significant personal cost, and is pretty devastated that they would screw her over right at the end of her career.
(Sorry for the long post and for (mis)using the AIBU topic for traffic!)
I would say get proper advice from ACAS, as on the face of it, while she might be 'self employed' for tax purposes, if they give her work, decide when she can take AL and she has to stick to their policies, she is actually, as far as employment law stands, be employed and as such protected by employment law!
That’s awful! You should speak to citizens advice and see what they say too. The fact that they pay money into her bank account to me seems like she is more of an employee so surely she has some rights. I'd look at deliveroo and Uber they were self employed people who protested for more rights, I don’t know much about it but hopefully something there will help. I think that’s awful and I hope she can find another job or retire depending on age, best of luck!
I have no idea, sorry. But they actually said she looks too miserable?!
Speak to CAB
Is she working for YFC? I’m aware they’ve had a restructuring. I’ve experience having worked at local and national level with them so feel free to PM me if that would help.
She needs some professional advice regarding her employment rights. Maybe start with ACAS? She's in a strong position in that she presumably has a 30 year personal relationship with the funders, so if the organisation screws her over she could leave and take a lot of funders goodwill with her. This doesn't appear to have occurred to the new management.
She needs to consider what outcome she wants here. A salaried position? Redundancy?
I would get legal advice because as I understand it (from employing a nanny, where its a big thing) an employer can only class someone as self employed under specific circumstances - I think one of the tests is that if youre truly self employed you can send someone else in to do your job and you decide how you do your work. So a childminder chooses their place of work, sets the hours & activities and a nanny works where & when their employer says.
My understanding is HMRC have been claiming back taxes from employers who get it wrong.
I really think professional legal advice would be needed re: redundancy & whether 'not able to adapt' = possible age discrimination.
If not an employee, she doesn't have unfair dismissal rights. Even if she is self-employed for tax purposes, it is possible she is a worker (has she been getting at least the national living wage and 5.6 weeks holiday per year - inc bank holidays?) It is an incredibly technical area and all the facts are relevant to decide employment status. Being a worker still wouldnt give her unfair dismissal rights though.
On the face of what you are saying there's an age discrimination angle possibly about how she couldn't adapt to change, they think.
I wouldn't advise walking out, so she'll have to stay there until they terminate her contract (whatever that may be). Then bring a claim alleging she is an employee who has been unfairly dismissed, alternatively a worker if there are claims (if she hasn't been paid properly for example, at least she would get something), and age discrimination.
And no one should ever forget the purpose of HR - they are not neutral. Their aim is not to be Acas, their purpose is to further the company's business, without claims.
She shouldn't really be self employed, if this is the only organisation she works for. The rules changed a while ago and I'm sure someone more knowledge than me Will come along. (Ir35 ?)
I wonder if they know that ?
I second going to CAB.
BTW if she does bring a claim saying she is an employee, she should expect the organisation to make much of why in that case she was filing returns saying she was self-employed. That should not necessarily put her off and doesn't necessarily mean they would pursue her - it is on the employer to make NI contributions and deduct tax via PAYE on employees' salary.
She definitely needs to take proper advice. Is there a volunteer law centre near her?
And if it comes to it, haven't they just scrapped the fees for employment tribunals? So she would have nothing to lose by bringing a claim as I think each party bears their own costs?
I'm not an employment lawyer though, she would be wise to get some professional advice. I know she concern used to have legal surgeries some time ago, maybe still do?
You can be self-employed working for one organisation although here the length of time working for one organisation will be considered.
You should also post this in legal matters as there are some very helpful employment lawyers on there.
It's a very technical area and she should really get some expert advice, not just CAB.
Speak to ACAS, recent case against Pimlico Plumbers seemed to imply that if you were treated like an employee despite being self employed you were technically an employee.
Not sure on the full details or latest ruling but ACAS can advise.
Pimlico Plumbers is about worker status, not employee status. It doesn't help with unfair dismissal.
I personally think from what you have said, that if she may have a case.
Even if classed as self employed, if her annual leave, duties assigned etc could define her as an employee- even in the absence of a contract, or even where there was a contract. Given that your mother has been working for them for 30+ years... that lends to the overall nature of the working relationship.
It can be possible for a self employed person to be considered an employee due to many factors.
See an employment solicitor ASAP.
As Thundercracker says, Pimlico Plumbers doesn't help. However, the Employment Tribunal looks at a number of factors to work out whether or not someone is genuinely self-employed. It sounds like there is at least a possibility that she would be classed as employed. As Thundercracker says, she may also be able to claim for age discrimination. If she has home insurance she should check if that includes legal cover. If it does they may be able to help her with advice from a lawyer who specialises in employment law.
Do the people pledging money know that it is going straight to her and not for fundraising etc? It sounds somewhat scammish to me.
Did I read it right that she keeps 90% of the charitable donations she raises ?
The determining factor is whether she's considered an employee.
It sounds like there was an expectation for her to provide a service. She used company equipment to do that.
I suggest she sees ab employment, as she potentially has a case. It's not straightforward...because there's no contract of employment to refer to.
It's going to be complicated but worth pursuing.
Thanks for your responses; this is all really helpful! We hadn't thought of ACAS but they are probably a very sensible first port of call. Also hadn't thought of the age discrimination aspect; she's 69 so that may well be a factor. Will see if Age Concern has any advice.
@thepinkocelot - that's what my dad said
@caulk - not YFC but in a similar vein. Much as I want to publicly name and shame them it's probably not the best course of action atm; will PM you.
@thundercracker - she gets significantly below national living wage / minimum wage. I think the self employed status is partly to allow that to happen without any repercussions for the organisation. Is that likely to affect her potential 'worker' status?
@squeaver - thanks; will repost in legal matters in the morning.
But what does she actually do Gilligan? What is her work? Going round asking for money to fund going round asking for money, even if the charity gets 10%, isn't a job surely?
@tawnyport @lalalonglegs Her donors are (knowingly) supporting her specifically rather than the organisation as a whole. Because the workers don't get paid any salary they have to raise their own living expenses.
The organisation does also employ professional fundraisers (whose salaries come from the 10% donated by workers like my mum) who raise funds for the organisation as a whole.
The majority of workers are in my mum's position - unsalaried but working fulltime, on the basis that they are responsible for raising their own living expenses by asking donors to support their work.
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