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.

www.pumpcourtchambers.com/2017/11/30/holiday-pay-claims-how-far-back-can-you-go-the-impact-of-king-v-sash-windows-c-214-16-cjeu/

Probably haven’t pasted properly but the three month time bar was overruled by European court of justice when it comes to holiday pay. Saying that, Pimlico appeal shows courts not applying Europeans court ruling (which happens quite often).

www.citizensadvice.org.uk/work/rights-at-work/holidays-and-holiday-pay1/check-if-youre-entitled-to-paid-holidays/

Citizens advice states holiday pay not time barred, but rolls forward every year. 🤷‍♀️ But definitely not straightforward.

You are not self employed because you have a place of work and fixed hours, they provide your tools e.g. computer, and you aren’t allowed to send a substitute if you’re unavailable. However the type of employment you describe is very common in schools and councils etc. They like to falsely make people self employed to reduce their own liability. It means they don’t have to pay sick pay, maternity or redundancy etc. Essentially it’s a cost saving measure. If you kick up a fuss they will sack you and you’ll be in the position of having to get a solicitor and fight for compensation. Nobody does that because they can’t afford the legal bill or the lost income. There are thousands of people in this situation across the country. One day the whole house of cards will fall down and there’ll be a tidal wave of claims.

@Moondust001- Whilst contractors exist, Flowery is correct that it is not an employment status. If you are being paid for work you may be self-employed, an employee or a worker. Your rights depend on which of these three categories you fall into. A contractor can be any one of these depending on the facts of the case.

Once HMRC decide the Status (and they are the ones with the absolute right to make the determination, not a tribunal)

You go on to say, correctly, that the employer can take it to court to fight it. So can the employee. And the court they go to is the tax tribunal. So no, HMRC do not have the absolute right to make the determination. The final say is always with the courts. And, in terms of employment rights (e.g. the right to holiday pay, which is owed to the OP based on the information she has posted) the final say is with the Employment Tribunal, not HMRC.

”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.”

Well every day’s a learning day! Of course the term “contractor” is used by lots of organisations (and does not mean the same thing to each). What one organisation describes as a “contractor” might be a self-employed consultant, whilst a “contractor” elsewhere could have worker status or be on a FTC, or even come through an agency. We see all sorts of variations.

But there’s absolutely no such thing as “contractor” when it comes to determining employment status, and it is unhelpful to use a non-existent employment status because the person you are describing will then find it hard to establish what their rights actually are. Looking up details of employment rights for S/E, worker and employee is easy. Trying to find out what rights you have if someone has said you are a “contractor”- not easy.

Accuracy and clarity are really important.

”Moondust this is not an employee tribunal matter at all.”

Of course it is. If the OP has been denied her employment rights due to inaccurate employment status, an employment tribunal is where she goes to seek redress.

”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.”

See above. If the OP has lost out on holiday pay, pension rights or similar, she takes the action and yes there are time limits.

”Once HMRC decide the Status (and they are the ones with the absolute right to make the determination, not a tribunal)”

Absolutely wrong. HMRC get to decide employment status for tax purposes. An employment tribunal gets to decide employment status for employment rights purposes. They look at very similar factors and would normally come to the same conclusion but are not binding on each other.

”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.” there have been several big cases since then, all of which have, like Pimlico Plumbers, been decided in the employment tribunals.

OP are you in a union? Would be worth joining perhaps, and then asking them for advice.
The service obviously seems not to be contracted out as the managers are permanent staff. Seems a bit dodgy to me.

Cab might be worth a try, too.

Many years ago I saw an ad in the Manchester evening news for a part qual accountant in a practice, stating
Full time position
Self employed status...

Was obvious the tight bastards didn't want to pay
Sick pay
Holiday pay etc

I rang for more details, def employee. Rang HMRC with the name of the firm saying I thought they needed a little 'help' with the definition of emoloyee/self employed

Also, OP I hope you're claiming all the expenses against tax that you're allowed such as mileage from home to work. For every day for the last 6 years. At the HMRC approved rate.