SME, have an office manager taken on without a contract of employment, taken on as 'contractor' i.e. paid for hours she works, given paid holiday and bank holidays. Has been on these terms for 2 years plus. She's struggling and we want to discontinue. Can we terminate straight away or what procedures do we need to follow
Province/Country relating to question: England
HiThank you for your question and welcome to Just Answer. I will try to help with this. Please RATE my answer OK SERVICE or above.Have you issued her with warnings?
Hi, no warnings yet. At start of this process. Want to do it right.
Hello, my colleague has asked me to assist with your query as it is more my area of law. Can you please follow this link and after answering the questions, tell me if you believe she is an employee or self employedwww.hmrc.gov.uk/employment-status/index.htm#1
For Ben Jones only
from your link - looks more like an employee than self employed
Ok, a person's employment status is not determined by the label they are given and what they believe they actually are, rather it is established through the overall employment relationship and how the employee is treated in practice. So even if someone is employed as a self employed worker and their contract states that to be the case, they could easily be an employee if they meet the criteria that give rise to an employee relationship.There are a number of established factors that are used to determine one's status and these have been the result of a number of court cases over the years. So at present the courts would use some of these to get an overall picture of the employment relationship and determine whether the person is really an employee or self employed.The tests that are most commonly used were the ones you looked at earlier. They are not a definitive indication but provide a pretty accurate idea of one's employment status.If you believe that the person's status in this case is more likely to be an employee than self employed, there is a good chance that is actually the case. If an employee has been continuously working at their place of work for over 12 months they will be protected against unfair dismissal. That means that to fairly dismiss them their employer has to show a potentially fair reason for dismissal and also follow a fair procedure. According to the Employment Rights Act 1996 there are five separate reasons that an employer could use to justify a dismissal as being fair and these are: conduct, capability, redundancy, illegality or some other substantial reason. The employer will need to show that the dismissal was for one of those reasons and also justify that it was appropriate and reasonable to rely on it in the circumstances.If she is struggling with her work then you can't just go ahead and dismiss. You have to warn her that her performance is below par, try to help her, offer training, etc and give her the opportunity to improve. Only continued under-performance can result in dismissal, which is always seen as a last resort.IMPORTANT: As professionals on this site, it is extremely important that our customers rate the service we provided. This only takes a few seconds. I would therefore be grateful if you could please choose one of the following options: OK Service, Good Service or Excellent Service. If you feel the need to leave a lower rating, please reply to me first with any further questions you have. I will be happy to assist further and clarify anything you need me to. Thank you
Expert in UK Employment Law
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