DP started work for an agency approx 2.5 years ago, on an ongoing contract. 6 months into this the agency advised DP and some other workers that to continue they would have to register as self employed contractors otherwise they would be unable to work the contract they were on.
they didn't really understand why, but did this anyway as the threat of losing work was quite worrying.
since starting at the agency they have all been working on a contract at the same company, when they went 'self-employed' nothing changed other than they now had to look after their own taxes and didn't get holiday pay. They do not set their own hours, are told what to do, cannot delegate the roles to others - have looked into this and it's well known in the construction industry as False Self-Employment, basically agencies can get away without paying NI and stuff for workers.
DP has now been told the contract is due to come to an end and there will be no more work, because of being made to register self employed he won't be eligible for any JSA etc.
Does anyone know if we would have a case against the agency? Looking to claim back for Holiday pay, employers NI (as a sole trader DP has been responsible for his own) and also pension payments which would have been made had he been employed. We have asked the agency to return him to PAYE and they have ignored the requests.
He doesn't sound self-employed to me. Yes he could claim holiday pay and also unfair dismissal, assuming he wasn't dismissed using a reasonable procedure and with fair reason. Those things would be a tribunal claim. HMRC is separate.
We have spoken to HMRC previously to confirm that he was made to go 'self employed' and would he get in trouble for the situations, they confirmed it would be the agency not DP who would be in the wrong here as the agency have to confirm every few months why people working though them are self employed and they must have given wrong info about it.
its definitely not self employed - he has been told he cannot work elsewhere while under this contract and that screams employment to us.
we have only found 1 instance when researching of someone claiming against an agency in a similar instance so are trying to gather together as much evidence and information as possible before proceeding.
I'd go and see a solicitor. Once the contract ends he could try and claim unfair dismissal but he'd need to demonstrate that he was an employee in order to pursue the claim and ultimately it's the judges decision if he was self-employed, worker or employee. You should be aware that there is no one fact which guarantees being an employee etc - it is very fact specific.