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Jenny McKenzie
Jenny McKenzie,
Category: UK Employment Law
Satisfied Customers: 5061
Experience:  10 Years of experience in Employment Law and HR
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Hi, my wife is employed as a casual gallery assistant at

Resolved Question:

Hi,

my wife is employed as a casual gallery assistant at Christies. Since that is more of a part time gig, she is thinking about starting to work as a freelance artist. For once, she wants to work for a startup that wants to offer an art related event, that she should run 1 or 2 times a week (they would provide art supplies, organize things etc.) she would only be the artist that shows the guests how to paint, simply put.

My question is, how does it all work now, she can continue her employment with Christies, and then she has to sign up for self employment right, in order to do art events, and at the end of the year, we ll do the self assessment for all her income in one go, right?

Is there anything that we have to watch out for with this constellation?
Submitted: 10 months ago.
Category: UK Employment Law
Expert:  Jenny McKenzie replied 10 months ago.
Hello and welcome to Just Answer, will the self employment work that she plans to do be in competition with Christies or is it a different market that she will serve?
Customer: replied 10 months ago.

Different. She will be teaching art, working for the start up company. At Christies, they sell art through auctions (my wife is assisting clients, that have questions about the art on sale!)


 


What might happen though, is, that she can sell her own artwork at those events too. So, that would be another part, that may come into it. Selling her paintings at those events (on the side) or also (if we do the whole paperwork) selling her artwork in general from her studio at home / over the internet etc.


 


Could that be a problem, working for Christies and being a self employed artist who is trading art at the same time?

Expert:  Jenny McKenzie replied 10 months ago.
Hi I would suggest that she checks her contract of employment as this may have restrictions on her working in certain areas. If it does all is not lost as it may be that if she approaches Christies they will be happy to agree to her carrying on the activities.

You should not that there is a general implied duty of fidelity to your employer so if there is a chance there is competition or it could be perceived it is best for her to talk to her employer about it first so that there can be no question that this has been agreed.

As regards XXXXX XXXXX question about employment status. She should contact HMRC before starting work, HMRC will register her as self employed in respect of this work. It is possible to be both self employed and employed at the same time.

it is likely that her Tax will be deducted at source by her employer and that this will continue. She will already have received her personal allowance in respect of her employed work so she will not be entitled to receive that again. She will obviously have to declare her income on a Self Assessment form. It may be worth seeing an accountant if it appears to be complicated, if her earnings are relatively low they are unlikely to charge much to assist her.

If you have any further questions please ask. If I have answered your question I would be grateful if you would give a positive rating. Thank you and all the best.
Customer: replied 10 months ago.

When you say "it is likely that her Tax will be deducted at source" you are talking about the teaching part, right? How would that work, being self employed, I thought you are always yourself responsible to pay your taxes and Nics...

Expert:  Jenny McKenzie replied 10 months ago.
Hi no I mean in regard to her work at Christies, she is responsible to declare all tax in relation to self employed earnings. Sorry for the confusion.

If you have any further questions please ask. If you are satisfied with my answer I would be grateful if you would give my answer a positive rating. Thank you and all the best to your wife with her new business venture.
Customer: replied 10 months ago.

ok, one last question would be, is this job really something that can be done as freelancer, or isn't it rather employment.


 


- she comes in, on evenings, maybe 1,2 or 3 times a week


- gets payed per evening, a fixed amount (125, which is renegotiable, if it is more work then expected, currently they estimate about 3hours)


- she does not have to provide the materials (paint, brushes etc) for the customers


- all she does is come in, set up things, teach painting (unsupervised) maybe sell some additional tickets (if more customers come in) and pack things up afterwards (someone else picks up the materials)


 


My feeling is (as a layman :-)


- There is a low to zero indication of substitution. (if she can't do a certain event, they will use somebody else)


- There is a low to zero indication of financial risk. (all she needs is a travel card to get to event locations in London)


 


Hence, sounds more like employment to me!?

Expert:  Jenny McKenzie replied 10 months ago.
will she be disciplined if she refuses to work an event or will they just put someone else in?
Customer: replied 10 months ago.

They say in the contract: they are not obliged to offer her work, nor is she under any obligation to accept work. If they mutually agree to offer an event, she is commiting to them to provide the service for that event. It doesn't specify, what would happen if she needs to cancel on short notice.

Expert:  Jenny McKenzie replied 10 months ago.
Oak, if they state that there is no mutuality of obligation then it is unlikely she would be deemed to be an employee for either tax or employment status purposes.

In the event that from a tax point of view she is self employed this would not prevent her from arguing that she is an employee for employment law rights purposes at some point in the future should the need arise and should it transpire that they do require mutuality of obligation when she does the work.

If you are satisfied with my answer I would be grateful if you would take the time to give a positive rating.

All the best to your wife in the future.
Jenny McKenzie,
Satisfied Customers: 5061
Experience: 10 Years of experience in Employment Law and HR
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