Employment law advice needed, Sole trader really a hidden employee

[HBA1981]

I’ve name changed for this as it may out me.

Over 9 years ago my DH was made redundant from a design company and went freelance, he has been freelance at the same company for over 9 years as a sole trader not a ltd company.

It was told to him by someone who works in the company that he should have more rights, but they were never given or challenged as he was worried they would ask him to leave and as I was not working it would be something we could not afford if they told him to jog on.

DH does not provided any of his own tools, he has a named Mac and desk, company email address, server log in and apart from unpaid holidays and sick he has not had any other work as he has been solely working there.

The company have made redundancy’s of permanent staff.
He and 4 other freelancers have been told not to come in for the odd week in the last 2 months. However today they spoke to him and said they were looking to run the studio on less freelancers and as he had worked there for so long ( over 9 years) they would give him work until the end of June but then no longer requirehis service.
He had recently requested different working hours as we have a disabled child and he feels this may be why they have asked him rather than the others.

I believe he should have more rights as does a family member with a bit of HR experience, however I have no idea what we need to do. Do we contact an employment lawyer on a no fee no win basis, or do I assume that he has these rights and ask him to dig out the policy’s and procedures and approach HR or whoever before he leaves.

Thanks in advance

Have a look on the HMRC website, there is a tool there to check if he is an employee
Me and DH are freelancers and have to be careful of not becoming employees so there are quite a few things we have to do/not do such as use our own equipment, work for multiple clients etc

Ring ACAS they have a advice line whereby a professional will advise you free. It’s for employers and employees. Good luck.

m.acas.org.uk/index.aspx?articleid=3457

Thanks, I have looked at ACAS and the tool. He is def classed as employed according to them. He was also never given a contract so I’m not sure how that worked.

His accountant has basically been telling him for years he is employed rather than freelance and he lost the ability to claim mileage to and from work years ago as it was to one address, so in fact he has lost out on so many rights it’s crazy.

He has however a company email address and invites to team days/meetings/ Christmas meals dating back 9 years.

I think he is going to get legal advice as it will be convincing the company that he is an employee. I think they know that they are in the shit with the four long term ( 6+ years) freelancers, so are trying to get rid and cross their fingers and don’t claim.

Sadly the company don’t treat the permanent staff any better and DH has known staff to disappear literally overnight.

That’s good, he has rights as an employee
He doesn’t need to convince the company of anything, they need to convince HMRC he isn’t an employee which by the sounds of it would be hard
Maybe ask for this to be moved to the Employment issues board, there are some really good and helpful employment law/HR people on there

It isn't so much HMRC the employer would need to convince in this situation. It is the employment tribunal when he brings a claim for unfair dismissal. He may also be able to claim for any statutory entitlements the company has not paid - pension, holiday pay, etc. He should see a lawyer who specialises in employment law as soon as possible.

Thanks, he has printed off loads of emails and a flow chart of staff which ironically he is on as are the other freelancers from the department. His branded time sheets he is required to fill in and get signed, work schedules and invites to team meetings and things so hopefully, it will be pretty straightforward.

he also has some ex-members of staff (department managers ) who may well come in as witnesses if needed.

He was also included on induction days when they moved premises and has been on staff training. Hoping there is enough evidence that it's not a stressful and long process.

He is seeking Legal advice but is still working there until the end of June and we need to money so can't start anything until July. Asit stands we would need to find a no win no fee lawyer, but have been told as its a long time and not a minimum wage job we may get lucky and find someone who would want to take on our case.

Thanks so much for all the advice, I did not even realize we could go to a tribunal as a sole trader! I thought it would be battling with the company directly.

You would be going to tribunal on the basis that your husband was actually an employee, not a contractor.