A few questions about a contract role

[Sharpkat]

Hi all

I just need a bit of advice.

I am almost half way through a 6 month FTC. I have no contract and will not receive one. I have asked. When I have done contract roles previously I have been paid weekly, but in this role I am paid monthly. Without a contract I had no idea this would be the case.

I am performing well and they are talking about making me perm but they are also working me into the ground. Am working 12 hours a day and am still behind. Not my fault - the workload is beyond what they had previously thought it would be. In fact it is double.

I am having to work UK & US hours due to the nature of the work.

Another reason why I am behind is I had to do a full day's training with the permanent members of staff last week. I am the only contractor. My rusty period of being in HR says that I should not be on training courses though it is a long time and I know contractor rules have changed.

I am paid a day rate. Previously through my umbrella company I could claim back travel and lunch expenses. No idea if I can here as I have no contract and am not getting one.

Any advice at all? If I should not be on training courses then that gives me ammo as to why I am so behind. Bottom line is I am bing seriously overworked and told to put up and shut up and there are just not enough hours in the day.

Thanks all

[Sharpkat]

Well they were very apologetic about everything. They are terminating the contract with the payroll agency and making me an agency worker with another agency.

My hours are being reduced. Not taking on non-core tasks anymore.

It actually all went very well and am glad it is all out in the open.

Am not saying we are home and dry but I feel much more able to push back and be in control of my workflow.

Could not have done it without all of the advice and support here so thanks all

[BingoWingsBeGone]

How did you get on Kat?

[GarthsUncle]

Good luck, hope you get what you want, whether that's a proper working agreement or a way out!

[Sharpkat]

Thanks everyone - and flowery I know you offer very sound advice. Hence why I turn to MN as I know there are some true experts here.

I have resigned. They have not accepted my resignation but have asked to meet with me at 9am to see what they can do to resolve the situation.

My stance is going to be to say nothing and hear them out. The situation is untenable at present and they need me more than I need them.

Will update when I can tomorrow but I really do appreciate the knowledge here.

[flowery]

"We need someone who knows more about agency workers."

I'm obviously giving the impression of someone who doesn't know what they are talking about, for which I apologise. I can assure you I do.

There are basically three types of employment status, employed, self-employed and worker. Agency workers are usually in the worker category. Contractor isn't an employment status, and contractors can be employed, self-employed or workers depending on the nature of the relationship. The fact that the agency pays tax and NI doesn't mean they employ her.

As the OP is engaged through an agency and there is nothing indicating that she is employed by that agency, then I think it is probably correct that she is a worker in terms of her employment status. Workers have some limited employment rights, including holiday and WTD rights as I've already pointed out, and agency workers also have specific protection against being treated less favourably than comparable employees at the place they are working.

It's pretty easy to find out a list of rights of workers/agency workers in particular, I think one has already been linked to.

The OP needs to insist she gets those rights, including holiday pay which seems to be missing at present, and decide whether she wants to stay with them, either as an agency worker with the limited rights that entails, or as a permanent employee if they are offering her that as it sounds as though they might be, on less money.

Personally, based on the way they are treating her, I'd be out of there like a shot in a few weeks when the contract is up. I can't see any indication that the actual problem here of expectations around working hours is going to improve regardless of her employment status, and even as an ostensibly permanent employee she still has very limited rights for two years anyway.

[Polkadotpatty]

Hmm, if the company has said they are treating you as an agency worker, then I guess the most sensible option is to read through the government guidelines about rights for agency workers:
www.gov.uk/agency-workers-your-rights/overview

However, if you can bear it after the shoddy treatment you've received, it may be worth doing things with as much goodwill as you can - you may yet be able to get a personal reference out of this. I am NOT saying be a doormat, but decide for yourself what feels reasonable and try and do it with a smile(on the outside!).

[LauraBridges]

We need someone who knows more about agency workers. I thought if a company took of NI and tax then you were an employee of that company - the US payroll company rather than self employed (where you'd be paid gross and you would then put the earnings on your tax returns and pay your own tax off there in due course). But I do know that some workers including in construction who are self employed HMRC have special arrangements that national insurance will be taken off at source even though the person is self employed.

It is probably unlikely you are an employee of the company where you are working although even there sometimes that ultimate user of someone's skills has been held to be an "employer" for unfair dismissal claims etc.

The US payroll company should tell you your working hours. They will have a contract with the company where you work. That surely will say what the hours those two have agreed and perhaps HR where you are working can tell you what hours are in their contract with the payroll company who contracts you out to them.

You could try emailing saying you have been clarifying your hours for a "day" and been told it is 8 including lunch so if they want you in for the 8.30am call you will need to leave at 4pm that day.

[Sharpkat]

The payslip has the name of the US payroll company.

[PigletJohn]

the payslip must, surely, state the name of the company that is paying you.

[Sharpkat]

Tax code and pay to date are shown on payslip.

No other documentation provided other than this 'contract'.

Am supposed to be on a 'team'
call on Monday at 8.30am. First one I have been invited to. Not sure I will be in attendance. Surely that it is out of working hours, not that they have been defined.

All I would like is confirmation of employment status. I even sent the US payroll agency the link above with what the contract should state but they did not follow that.

The company I 'work' for's HR admitted that they are treating me as an agency worker. If I am a contractor then they are in a difficult position with regards to the training last week.

Thanks again everyone.

Katherine

[LauraBridges]

Does the US company have any standard terms in addition to this so called contract? Why are they taking national insurance and tax off you if you are not their employee? You get pay slips. Do they show the usual employee things like your tax code and pay to date?

[PigletJohn]

it might be better if you say that, for the moment, you will be working per your contract, which is a day's work for a day's pay. You would be keen to discuss a definition of your responsibilities and working hours, and may be open to occasional overtime in some circumstances. You wish them to acknowledge that it is not sensible to expect you to work 12-hour days plus unpaid weekends.

Working for a company which has decided not to employ enough staff to do the job is not an emergency that you can take responsibility for.

[Sharpkat]

Sorting the CV out this weekend. Thanks PJ. Need to come up with a plan of action. Ironically one of the other managers sat me down today to ask what they could do to keep me permanently and what salary I would want.

Would I be unreasonable (not an AIBU) to say I am not returning until they confirm my employment status?

[PigletJohn]

you will get a day's pay for doing a day's work. What could be fairer?

If the "contract" doesn't specify what you are supposed to do, and the client asks you to spend your day doing X, you can do X. Hopefully you have an identified "manager" who is supposed to tell you. It will do no harm to point out if you are assigned more work than can be done in the time available. You can do tasks in the order received unless the workstack is prioritised.

Are you still looking for a better job?

[Sharpkat]

Well the contract I have received is not worth the paper it is written on. It gives my name, address, client I am contracted to, day rate and that I will be paid monthly.

On Monday I am taking the stance that until my employment status is confirmed I am working 9-5.30 (no working hours stated) and will not be doing anything other than my job. No helping other people. No resolving IT issues. No spending time with new permanent employees

In fact I feel like sending an email saying that until my employment status is confirmed I am not going into the office.

This is just a shambles. And as to the work I have brought home this weekend - it won't get done.

[Sharpkat]

Thanks all. MN helps me out again.

Spoken to HR here and asked what my employment status is. They could not confirm if it is contractor or agency worker but are looking into it and have agreed that I am entitled to a contract.

Will have to see what that says and take it from there.

[flowery]

Sigh.

Agency workers are not usually employees of the agency. They usually have worker status, not employee status, unless there is a contract of employment between the worker and the agency. It's certainly not possible for anyone here based on the information provided to pronounce that the OP is an employee of the agency, and my guess would be she is not.

Agency workers are protected under the Working Time Directive, and the obligation there falls to the end employer, and to holiday, which is the agency's obligation.

[LauraBridges]

As Marra, and I,m said you are an employee of the US company which takes off your tax and NI and gives you a pay slip. You are not self employed. You are protected by the working time directive. You need to be told by the US company your daily rate and how long a "day" is. The US company should send you all these details as they are the employer not where they have sent you to work.

I think you should be able to get it sorted out and keep the job. Either they tell you the day is say 7 hours (and pay you £X an hour for every hour of a day over that) or else they agree you can leave at 5.30pm every day. If they say a "day" is 12 hours or however long it takes then you need to tell the US employer about the working time directive and that you do not agree to opt out of the 48 hour working week.

[PigletJohn]

please see

Marraskuu Thu 13-Mar-14 22:06:03

[Sharpkat]

Thanks all. I really appreciate it. I am going to speak to HR tomorrow as the agency are not communicating with me.

It would seem that I am an agency worker but being treated unfairly.

An hourly rate would make me very wealthy.

I need to put my foot down.

Have recently had a two week holiday PigletJohn - no pay for 2 weeks is a killer.

[PigletJohn]

you are not doing yourself, or anyone else, any favours by working excessive hours. Are you hoping the good fairy will bring you a reward? No, it will just be thought that you are doing what is expected of you.

Please book a 2-week holiday.

[GarthsUncle]

Yy to getting paid an hourly rate.

[Marraskuu]

If you are: working to complete a specific documented piece of work, responsible for managing your own time and workload to complete the required work, providing your own equipment, responsible for maintaining your own skill levels, paid without any source deductions for tax or national insurance, and would be responsible for finding someone else to complete the scope of work if you were incapacitated, then you're a contractor.

If you are: fulfilling a permanent role in the company (even if you're not permanent), not working through a third party employment agency, and have your duties delegated to you by a manager on a day to day basis, then you have the right to be treated equally as an employee. People on fixed term contracts should still be treated as employees, although they are sometimes excluded from specific company benefits such as joining the pension.

If you are doing the employee duties above, but are engaged and paid through a third party agency, you're an agency worker. The agency is your employer. You still have rights, but these are based on how long you have been continuously placed in the same role. The rights include statutory sick pay and holiday entitlement, which should be paid by your agency, not by the company you're placed in.

The HMRC website is quite good on this - have a look at their section on employment vs being self-employed: www.hmrc.gov.uk/employment-status/

Whatever turns out to be the case, your working hours seem excessive and pressured. You say you're paid on a daily rate. I would ask for a definition of a standard working day. If you're not paid hourly, and this is not your dream job with potential, there doesn't seem to be much incentive to keep up this punishing pace!

Hope you get things untangled soon, and the workload becomes more manageable

[Sharpkat]

I am not sure how I have ended up being employed via this payroll company. My employment history is full of gaps so I think they did not want to offer me a permanent role as I look like someone who moves roles all the time and takes huge periods of time off, but I can explain it all. Personal illness, study and bereavement.

The company that I 'work' for offered me a 6 month contract. Day rate. Payrolled via this US company. Whenever I have had a day rate before I have been paid weekly. Now it is monthly though I had no idea as I have no paperwork.

So many things have been said that make me want to leave but most employers run a mile when they see my patchy employment history so a bit of stability makes the CV look better.

Based on everything I have now established am I a worker or contractor?

I really do appreciate everyone's help, advice and support

[GarthsUncle]

Good luck OP. You don't have to put up with this.

You are paying tax and NI - I think the not doing training is more applicable to you having your own company and selling your services.

How did you end up working through the agency?