Self employed or am I?

[Twinmama32]

I work part time - 12hrs a week term time only. I’ve been working at the same place for nearly 6 years, when I started the role it was agreed that I must be self employed.
I’ve gone along with this but it’s been pointed out several times that given I’ve worked for the same place for so long that I shouldn’t be self employed.
I’m not sure if my rights, if any?
My manager is not very supportive and I don’t feel I can ask her.
The overall employer is a borough council, but as we are based out in a different office I think we get forgotten about, my managers are both permanent employees, I’m the only one in this situation.
I’m wondering what I should do going forward as I feel quite displaced especially because of Covid, I’ve only just started back at work again after 6 months off. Any advice would be great.

You don't sound self employed if they tell you what hours and days to work

www.gov.uk/employment-status/selfemployed-contractor

Thanks for the link, very helpful and clear that I shouldn’t be self employed.
I’m not sure where to go with this though as I’m afraid that I’ll lose my job if I make a fuss about my status.
I also realise I’m being a sap about this but I’ve no one to ask for advice!

This HMRC tool is excellent and will give you the answer. At the end of the answers it churns out a smart looking report to demonstrate your employment status:
www.gov.uk/guidance/check-employment-status-for-tax
You can go back to repeat it.

This piece might be helpful too:
www.litrg.org.uk/tax-guides/self-employment/am-i-employed-self-employed-both-or-neither

I think you need to approach the HR department (who are presumably all working at home) and give them the opportunity to sort this out. You should take note of all emails/conversations.

Good luck OP, but it really does sound to me as if they owe you ££ of holiday pay and pension contributions.

You sound like a standard employee. What is it you do?

What happened about being off due to furlough, have you had any pay or anything?

I’m an admin assistant. My work ceased on 18 March and didn’t resume until September as I’m school based.
I received the self employed government grant during this time.

The length of time you have been there is not relevant to whether you are self employed or not. You need to think about things like:

• can you turn down work, pick your own hours
• can you send someone else along in your place
• do you provide your own tools and equipment
• are you running a business, are you managing profitability.

Being self employed is not a matter of agreement or choice, it needs to be properly assessed. I suspect you are a regular employee too and have been deprived of a number of benefits of employment.

The organisation is at risk of fines potentially by failing to correctly class you as employed or self employed (IR-35 regulations I think). Use the HMRC to upthread and contact HR or finance (whichever is generally the most helpful) with the saved down copy of the tool.

@Nacreous

The organisation is at risk of fines potentially by failing to correctly class you as employed or self employed (IR-35 regulations I think). Use the HMRC to upthread and contact HR or finance (whichever is generally the most helpful) with the saved down copy of the tool.

IF35 regulations are concerned about employment status, but I don’t think it is an IR35 issue for OP, their situation seems to be a more fundamental one about being incorrectly classified.

IR35 generally applies to contractors who set up a Ltd company (so not self employed) and then pay themselves mainly dividend when the nature of their engagement with the people that contract for is really akin to employment.

The contractors that do that, generally will benefit themselves. In OP’s case, she is being disadvantaged whilst the employer will be hugely benefitting at their expenses.

But if you're a self employed contractor (without a limited company) you're only paying self employed national insurance? And therefore the same issue applies I think.

Public sector organisations have a responsibility to see how their contractors etc are paying themselves and the tax and NI implications of this so I think the organisation should still need to be concerned with it.
So it would be okay from an IR-35 point of view if she's paid through the payroll as a worker not an employee, but not probably okay if she invoices them I think?

www.gov.uk/guidance/off-payroll-working-in-the-public-sector-reform-of-intermediaries-legislation

I agree the fundamental issue is the OP missing out on employment rights - but I know that IR-35 is a scary beast for lots of organisations and think it might make them take it seriously.

Who pays you, the school or the council?

Can you phrase clarify - a council is your employer? Because making an error of this nature, assuming you are not self-employed, is very rare in the statutory sector. And if it is a mistake, quite possibly easier to fix with a council than with other employers, without risking your position. Are you employed by a council?

This will cost them a fortune to sort out / Not only do they owe HMRC tax, but they also owe probably owe you Holiday pay - equal to around 12% of the total amount they have paid you over the last 6 years. Plus any benefits the other staff have received over the years.
Have you been submitting tax returns yourself over the past 6 years?
In a non-covid world you should be speaking to councils HR dept and telling them to sort it and arrange payment of benefits due (and then call HMRC helpline if they ignore). In a world where you may lose your job at any point you may instead want to sit on the info for a while. Your employer is the one who gets it in the neck, not you. I’m not sure on the implications for covid furlough payments though - in theory you should have been furloughed as an employee so they may want your govt grant back.

@TheBlessedCheesemaker

This will cost them a fortune to sort out / Not only do they owe HMRC tax, but they also owe probably owe you Holiday pay - equal to around 12% of the total amount they have paid you over the last 6 years. Plus any benefits the other staff have received over the years. Have you been submitting tax returns yourself over the past 6 years? In a non-covid world you should be speaking to councils HR dept and telling them to sort it and arrange payment of benefits due (and then call HMRC helpline if they ignore). In a world where you may lose your job at any point you may instead want to sit on the info for a while. Your employer is the one who gets it in the neck, not you. I’m not sure on the implications for covid furlough payments though - in theory you should have been furloughed as an employee so they may want your govt grant back.

And to add - which is one of the reasons I want to know if there really is a council as the employer - local authorities as a rule are not allowed to furlough staff. If there isn't an explanation. As I said, it can certainly happen but it's really rare for a local authority to make such a significant error.

My kid's school (academy) furloughed lots of admin, kitchen and nursery/after school club staff.

@Mippi

My kid's school (academy) furloughed lots of admin, kitchen and nursery/after school club staff.

And that is quite right - because none of them will be local authority employees. Most school staff these days are employed by the school or the trust that runs the school - any involvement by the local authority is as a payroll function that is bought in. So they are nothing more than the processors of wages. My own local authority employs no school staff any more - the kitchen staff are employed by an outsourced company, the cleaners teachers and all other staff by the school / school management. This is not uncommon these days.

To answer the question who pays me It’s a London borough.
Although I’m based in a school I don’t work for the school, we run sporting events for the borough Primary and secondary schools.

Forgot to add...I have been submitting tax returns for the last six years

@Twinmama32

To answer the question who pays me It’s a London borough. Although I’m based in a school I don’t work for the school, we run sporting events for the borough Primary and secondary schools.

Ah. OK. I'd say you are almost certainly a contractor and not an employee. That would be how staff like you are normally contracted. It's effectively sessional work, not term time working; and only part of the year, as required. So it may be that you are always getting 12 hours some weeks, but that in itself wouldn't be enough to suggest you are an employee. They could technically cut it any time they want.

Of course, given we only have a few details, I might be incorrect in that supposition, although it really would be rare for a Council to get that wrong. But it can happen. So my question would be - if that is the case, what are you expecting to happen? You would need to submit a grievance claiming employee status, and you would need to be very sure that you are (a) right, and (b) will take it to an employment tribunal if they say no.

This is a classic case. Of course you aren't SE, but they've got away with it for 6 years, means no holiday pay, no pensions etc. Cheaper for them!

”Ah. OK. I'd say you are almost certainly a contractor and not an employee.”

In terms of employment status there is no such thing as a “contractor”. OP is either genuinely self employed, or a worker, or an employee. It is vanishingly unlikely that someone who is an admin assistant and has “managers” is genuinely self-employed (in business on her own account, incurring financial risk and all the other myriad indicators of self-employment). The only admin assistant type people who would genuinely be self employed would be something like a virtual assistant, operating their own business and working with multiple clients.

OP will be either a worker or an employee. Either way, she’s owed a lot of holiday pay.

I'm astonished to be told that there is no such thing as a contractor in UK law - there very definitely is, and there are contractors in many types of industry. Contractors are self-employed. Contractors are recognised by HMRC. They even have special rules for contractors.

If the OP is a worker or an employee, then they might be owed holiday pay. They might also owe tax and NI. They will also have to, as I said, raise this with the Council, and if the Council doesn't agree then go to an Employment Tribunal to test it. That in itself may well be complex - it appears from what the OP has said that their "service" is not continuous, and they have only been in work during the terms; and have only returned to work recently after a break of some months. They are, therefore, out of time to make a claim. They could, of course, make a civil claim for owed money, but that court has no jurisdiction to determine employment status; and if they cannot exercise the jurisdiction to determine employment status, then they cannot determine any money is owed.

Of course we can agree to disagree about this - I do not think there is sufficient information to categorically state that someone is one thing or the other. But this still goes back to "what is the OP going to do about it" because they must do something. And what they may find, given that it looks very possible that they have only a few weeks continuous service, is that that will be all the continuous service they ever accrue.

Moondust this is not an employee tribunal matter at all. There’s no time bar involved either (well technically a 6 yr one but even that can be extended sometimes). It is a tax avoidance matter and HMRC deal with these cases daily. They are the ones who take the action against the employer, not the OP. Once HMRC decide the Status (and they are the ones with the absolute right to make the determination, not a tribunal) then the monies owed for missed benefits fall out of this. If the employer disagrees then the employer must take HMRC to court to fight it. And employer would probably lose given the details OP has provided. I would dig out the Precedent case law but can’t be arsed - you can google the last ‘big’ case In this area if you want - the Pimlico plumber one.

Actually Pimlico Plummer one still going through the courts as there was a counter appeal on time barring which I thought had already been overturned, Appears to still not be settled. I should have been arsed to check my stuff first.