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Ben Jones
Ben Jones, Solicitor
Category: UK Employment Law
Satisfied Customers: 38514
Experience:  Expert in UK Employment Law
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I started working for a company in May 2010 and in December

Customer Question

I started working for a company in May 2010 and in December 2010 they informed me as my profit figures were not sufficient they would terminate my contract but I could keep working for them (doing exactly the same job with exactly the same hours and holiday etc) but on a self employed basis so they only paid me the nett amount I was previously receiving before PAYE/tax deductions and that when the "arrears",the amount between my profits and my higher total salary had been repaid,they would put me on a commission system as well as my "salary". This additional commission system started around May 2011 and I was doing extremely well. In March 2012 they informed me I had to pay GBP 400 per month towards my car costs which I refused and eventually it was agreed they would take the car back and I would work from home. They have been increasingly "imaginative" in finding reasons to reduce my commission payments which I've been complaining about strongly and now they've terminated my contract as it is no longer "viable" for them to continue. I consider I have been unfairly dismissed. Can I try taking them to an Employment Tribunal or do I have to prove I am an employee first ? I've spoken to ACAS and HMRC and have taken various HMCR employment status indicator (ESI) tests periodically since January 2011 which indicates I'm an employee and it's been suggested I write to HMRC Status Team in Glasgow regarding this but I understand this only relates to tax issues and not employment law ? I'm 59 and a Sales "Consultant" for a UK freight forwarding company. Many thanks !
Submitted: 1 year ago.
Category: UK Employment Law
Expert:  Ben Jones replied 1 year ago.

Ben Jones :

Hello, my name is Ben and it is my pleasure to assist you with your question today.
Before proceeding please note that as I am a practising solicitor, I am often in and out of meetings, travelling between clients or even at court when I pick your question up. This may even occur at weekends. Therefore, I apologise in advance but there may be a delay in getting back to you and providing my advice. Please be patient and I will respond as soon as I can. You do not have to wait here and you will receive an email when I have responded. For now please let me know what your specific question is.

Customer :

Hi Ben,

Customer :

I hope I've provided sufficient detail for you. My main question is can I take the company to an Employment Tribunal whilst there is a "dispute" with them regarding my employment status please ? Secondly,from the information provided to you,do you think I would have a decent chance of success in my claim please ?

Customer :

Many thanks,Kevin

Expert:  Ben Jones replied 1 year ago.
Our chat has ended, but you can still continue to ask me questions here until you are satisfied with your answer. Come back to this page to view our conversation and any other new information.

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If you haven’t already done so, please rate your answer above. Or, you can reply to me using the box below.
Expert:  Ben Jones replied 1 year ago.
Hello Kevin, thank you for your patience. To be able to claim unfair dismissal you will have to show that you are an employee. Establishing one's employment status is not an easy task and there is no single test that can be used. It is usually irrelevant what a person is labelled as by their employer because their status would not depend on that, but on the overall employment relationship, how the employer treats them, etc.

Following years of case law, a number of established factors have generally been accepted as a reasonably accurate way of establishing whether someone is an employee or self employed. These are the tests you have already taken and the courts would still use some of these to get an overall picture of the employment relationship and determine the person's employment status.

You will not be able to get HMRC to advise you of your status so that you can decide whether to take this to a tribunal or not and you would be expected to simply make your claim and then the tribunal will decide whether you are an employee and if your claim should be allowed to proceed. Just remember that you only have 3 months from the date your contract terminates to make your claim.

In terms of your prospects of success, it is not possible for us to discuss these because I simply do not have enough information to give such an opinion. This is reserved for solicitors who have been formally instructed and who have had the chance to consider all evidence, including documentary and oral, after they have met with you.

I would be grateful if you could please take a second to leave a positive rating. Your question will not close and I can continue providing further advice if necessary. Thank you
Customer: replied 1 year ago.

You've told me nothing. You should reimburse me my full fee.

Expert:  Ben Jones replied 1 year ago.
What specifically do you want to know? I cannot tell you whether you are an employee or self employed as only a court can do that. I can't give you prospects of success from one paragraph of details that you have provided?
Customer: replied 1 year ago.
What a rip off ! Don't bother to reply
Expert:  Ben Jones replied 1 year ago.
ok

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