Our thanks to Backhouse Jones the specialist transport solicitors for an article they recently published that raises this important issue once again. It follows on from a recent case, Addison Lee Limited v Lange, Olszewski & Morahan, where the Employment Appeal Tribunal (EAT) held that the Employment Tribunal was entitled to use a “realistic and worldly wise” approach to determining employment status.
You can see the full account in the ‘Back – Employment Newsletter’ published in December at www.backhousejones.co.uk/download/employment-newsletter-december-2018/
Our understanding is that some smaller removal firms are still adamant that they can employ someone on a self-employed basis. If you read on you can determine yourself what constitutes self-employment status. The key factors to consider are:
– The individual is in business on his own account, he is responsible for the success or failure of his business and can make a loss or a profit. He actively markets his business to the outside world in general. You are a customer of his business undertaking or a client of his profession.
– He is not an integral part of your business and is not held out to customers as such.
– There is no control over what he does – he can decide what work he does and when, where or how to do it – note the very nature of the industry and work doesn’t allow for this.
– He does not have to perform the work personally but can send someone else to do the work, hire in help or subcontract the work out.
– He is responsible for fixing any unsatisfactory work in his own time
– He provides his own equipment, vehicle, tools for his work, uses his own money to buy business assets, cover running costs etc (including their own vehicle and therefore O Licence)
– There is no obligation to supply and accept work
A word of advice to employers therefore is that if you can satisfy most, if not all of the above, then they are probably self-employed. Any employers continuing to engage so called ‘self employed’ drivers when they do not appear to satisfy the above are running a major risk both from an employment law status as well as a tax perspective. This includes engaging an individual through a Ltd Company and/or Driver Agency who engage with the Ltd Company as an intermediary.
If you are still in doubt, please contact a member of Backhouse Jones Employment Team on 01254 828300 to discuss further.