Is this an IR35, contractor or self-emp issue please??

[CluelessofMn]

Basically DH was told he is a Contractor.

Digging out his Contract, it looks pointless and very very vague.

Already question marks over whether he is employed or self-employed due to the expectations of ‘his’ company but as it currently stands, my question for today is this….

Last month he gave in his dates for Christmas absence. (Dates he won’t be working)

Email received today ordering he & two colleagues to work one day each in the middle of the 7 he has (rightfully?) taken.

Thoughts please. Can a Contractor rightfully dictate which dates they take off unpaid?

Depends really
He can say when he is unavailable for work and his employer/client can say that they really do need him on those dates. If he is SE he can refuse and they can probably terminate him
But it really does depend on his contract

Hmmm, ok. Thankyou, that’s helpful. His contract is beyond useless.

Has he gone through the status checker on the HMRC website?
To be honest it won’t do him any good, he might be employed but if he causes a fuss he can be terminated as a SE person (even if he isn’t)
It’s rubbish, I’m sorry

He has and he’s about to seek advice from an employment lawyer. It’s only because he is toying with resigning with immediate effect to get away from the toxicity immediately that he was hoping for clarification asap, that’s all.

So many horrific emails, bubbles broken re covid, his role has changed 4 times in 4 weeks yet his Contract, job description & salary hasn’t, hours have changed, work place has changed, I could go on & on and now they’re making him work night shifts as well as days….& because we can’t work out if they’re illegally using him as a Contractor rather then self-emp, we don’t know if this goes against the Working Time Directive (I think it’s called)

He’s definitely not employed, they keep telling him he has no entitlement (to them, no MN er)

How long has he been with them? Does he have control over the working hours and days? Does he have a manager or anyone telling him what to do on a regular basis?
What sort of work is it?

In terms of your terminology, for employment law purposes contractors can be employees, workers or self employed. Each has different rights. Whether your DH can take breaks/holiday when he wants will be determined mainly by his written contract but also by his actual employment status.
As to whether they can 'make' him work during his holiday the answer will almost always be no, but the wider issue is the consequence of that!
Genuinely self employed can dictate working times, but if the client doesn't like it they will terminate the contract. Workers and self employed have less control of their holidays. Refusal to work could result in termination of the contract for a worker or disciplinary action for an employess.

IR35 is a tax matter with associated but different consideration. I don't think you're asking about his tax status.

@Level75
His Contract is titled Contractor and it’s re-issued supposedly every 6 months. It is not, however, it’s always delayed or produced late whenever they just happened to remember no matter how many times DH has to remind them for a renewal. It’s literally one side of A4 consisting of their registered name and address, DH’s name and address, details one role (despite the frequent change) his salary per shift (they refuse to pay him for a full one if not completed if it was outside of his control & for training days they refuse to pay him as well, even if he goes from them straight to a night shift, effectively working 36 hours straight) what the alleged role includes and that they provide the equipment. It involves heavy machinery in his own vehicle yet the employees are given a van.

I’ve been self-emp & employed and have actually issued legal proceedings against an employee and won at tribunal so have some knowledge and experience but this is a whole different ballgame.

He definitely is not employed by them; they do remind him daily in a passive aggressive manner that they are the boss.

There is no mention at all in his Contract of annual leave, whether it be accruing it, they dictate it, whether it’s paid or unpaid…it literally is not mentioned.

He is in Health & Safety which involves maintaining machinery and healthcare units when they’re not being used. There is no set place of work so he goes wherever he is sent. His shifts vary from 6-12 hours and each is at least a 2 hr drive each way and he doesn’t get a break in those shifts due to the machinery being needed back to the paying client immediately.

To me it just feels so messy.

How long overall has he been with them? He could actually be an employee despite what the contract does or doesn't say.
Good idea to seek proper legal advice (which I think you are).

Sorry, I forgot to answer. Just about to hit the 2 year mark which I know is the critical point.

I think that actually all the questions you’ve asked have proved to be really insightful, having thought about it albeit briefly. Thankyou.

You keep saying he is “definitely not employed”. But a company telling someone they are not employed doesn’t mean that’s true. Someone’s employment status is based on the reality of the situation- the nature of the relationship between the company and the individual. It’s not based on what the company says it is. If the various factors a tribunal (and/or HMRC) would look at indicate that this is a relationship of employment, then he is an employee.

Yes, that’s what I mean.

In the eyes of the company, he is definitely not employed.

An update and another question if anyone can think of why they would do this.

DH was given his Termination of Contract at Christmas with immediate effect which in their Ts & Cs state payment will be paid for dates worked up to and including that date. He hasn't worked for them since and won't any more.

DH has been told in an email that he will be paid for the first two weeks of January upon providing an invoice. The only incentive we can think of for them to do this is that the company financially profit because they pass on his invoice to a client at a higher price.

If DH submits this, will he be in trouble with HMRC for submitting false invoices? Why else would the company request these?

Sorry I am a bit confused
So your H has been asked to submit an invoice, does he usually get paid this way?
Surely he submits for the work he’s done, which won’t be false
Apologies if I’m misunderstanding

Ok, I have re read it and I think I get it
They want him to submit an invoice for work not done is that right?
I think as long as he words it truthfully then it’s fine, it’s not his responsibility if they pass charges on and it’s not a false invoice.
If they want him to state it’s for doing XYZ which he didn’t actually do then he could be on shaky ground I suppose

Sorry, yep, you've got it spot on. I successfully managed to waffle then 🤦🏻‍♀️

It is shaky ground as he has to specify in exact terms the work performed.

I wouldn’t advise him to submit an invoice for work he hasn’t done even with the agreement of the client really.
I think you must be right, they are probably charging him out

Thankyou. Not submitted and dates in reference wrong

There’s a difference between having employment rights and being an employee in the eyes of hmrc for tax purposes (inside ir35). It’s complex legislation and not easy to determine status without expert advice. If the company he’s working for has any direction or control (where/when he works, etc), he cannot provide a substitute, there’s mutuality of obligation, can be told to work whatever they want (no well defined sow or project), etc then they’re highly likely inside ir35 (so an employee in the eyes of hmrc).

In your case I don’t think this is an ir35 issue, as I assume he’s being paid with all deductions already made (paye, etc), more an issue around his contract. I’d not invoice for work not done either so think he’s done the right thing.