Self employed TA

[mckenzie]

My Sister-in-law has recently started work at a independent school as a TA and is being told that all of the staff are self-employed. She needs to produce an invoice at the end of each month detailing her days worked and her daily rate.
Does anybody else have this?
It all seems rather strange to me. Apparently they have said that she can speak to the schools accountant if she wants to.

[Comefromaway]

Hmmm, seems they are trying to get around employment legislation. A lot of independent schools seem woefully unaware of the law.

Basically it will avoid sick pay and holiday pay. They are treating her like a self employed supply teacher. But supply teachers get an enhanced rate of pay to account for this. They also have the freedom to accept or refuse work each day and most work through agencies who have the right (within reason) to send a suitable replacment worker.

Accountants are not employment law specialists.

[mckenzie]

That’s what I thought Re holiday, sick pay etc
I don’t know her rate but she has said it’s not much. They want her to sign a contract though

[IWouldPreferNotTo]

Sounds like a prime candidate for falling inside Ir35 as well as she's not a true independent contractor.

Could end up paying a lot of tax and ending up very poorly paid.

[mckenzie]

Thank you, I’d never heard of IR35 but I’ve sent her the link to the checker page on the Gov website. It looks quite thorough so hopefully it will tell her whether it’s ok or not.

[Chasingsquirrels]

Unless they have asked her to set up a limited company and contract her services through that then IR35 is irrelevant, so you probably ignore that.

Employment / Self Employment depends on the facts of the matter, not what one party or the other decide it is.

They may well be trying to avoid their responsibilities, although that wouldn't stand up in court nor an employment tribunal - if she is by fact employed then she would be entitled to the benefits of employment. Not a lot of good though unless she intended to take them to court/ tribunal to enforce those rights.

[mckenzie]

Thank you. So who can tell her whether it’s ok to accept what they want her to do? Or is it really just what she’s comfortable with?

[Chasingsquirrels]

Well, we don't know from your brief post the full facts of the matter ... BUT I'd eat my hat if she were actually undertaking a self-employed engagement.

It's up to her what she does, she will be "signing up to" not having holiday pay, sick pay, other statutory rights unless she later takes it to tribunal.
They are also putting the tax onus onto her (although tbh they are leaving themselves at risk here as in am employment situation HMRC can go back to the employer for unpaid tax, plus penalties etc - I am really surprised they are doing it and would appear to be very badly advised).

It probably comes down to how much does she need the job.

[Hoppinggreen]

it’s up to HMRC whether she’s employed or self employed not her or her employer really
However, if the school has been getting away with it for ages they will probably continue to do so so your sister has to decide if she wants the job or not. It’s really shitty though and I wouldn’t do it unless I was desperate (I actually AM self employed)

[Janecon]

If you are only working for one employer then generally speaking you can not be self employed. Employers can not choose to opt out of their liabilities as employers by telling employees to be self employed.

[Comefromaway]

This is HMRC’s checklist. It’s not definitive and there are other issues surrounding whether you are a worker, an employee or self employed but I would be VERY surprised if a TA could be classed as self employed.

“Someone is probably self-employed and shouldn’t be paid through PAYE if most of the following are true:

they’re in business for themselves, are responsible for the success or failure of their business and can make a loss or a profit

they can decide what work they do and when, where or how to do it

they can hire someone else to do the work

they’re responsible for fixing any unsatisfactory work in their own time

their employer agrees a fixed price for their work - it doesn’t depend on how long the job takes to finish

they use their own money to buy business assets, cover running costs, and provide tools and equipment for their work

they can work for more than one client”

[mckenzie]

thanks very much everyone.

[MsChookandtheelvesofFahFah]

Crikey, unless she's charging £30 - £40 ph I wouldn't touch this with a bargepole! What about a pension? Won't she be liable for employer NI as well if she isn't classed as self-employed? Working in a school you get all manner of illnesses passed on and she won't get any sick pay. I'm sure it can't be legal.

[JaesseJexaMaipru]

As a pp has already pointed out, she is not genuinely self-employed unless the school would be happy for her to subcontract the work to someone else whenever she wants. The school cannot get round employment law in this way. The school should be reported to HMRC regardless of whether your sister decides to sign. The school are diddling the tax payer out of significant National Insurance contributions with this wheeze. The NHS needs that money, which is currently lining the pockets of the well-heeled

[TortoiseLettuce]

Employers can not choose to opt out of their liabilities as employers by telling employees to be self employed.

They do though. Loads of schools and colleges do this and more are doing it all the time. And they get away with it. This is why I stopped teaching, because I was sick of being forced to be fake self employed so my employer could avoid having to offer benefits such as sick pay and maternity etc.

They told me “it’s not because we don’t want to pay you properly, it’s because we can’t afford to because of government budget cuts”. Oh well, that makes all the difference!

[McNeat]

This is how all my TAs, LSAs, Etc we're employed. Is it in east London by any chance

[mckenzie]

Not East London. It’s Bristol area

[YequeTuZainti]

Can you name the school @mckenzie ? (By pm fine if you'd rather not put it on the public board) - I'm looking at independent schools in that area and it sounds like I need to add "and do you exploit your staff and try to get round basic employment rights" is going to be another question to answer before I decide which ones to go for.

[mckenzie]

YequeTuZainti, I've sent you a PM