Are cleaners employees or self-employed?

Are cleaners employees or self-employed?

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Does anyone have an informed view of whether a cleaner you use regularly, for 2 hours twice a week in an office, (who has many other clients/jobs), should be treated as employed or self-employed. Would it make a difference if they were:

1) A partnership
2) A limited company

Thanks all.
Dave Collier

Replies (9)

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By peter.blatch
10th Aug 2005 14:10

For National Insurance purposes
A cleaner engaged under a contract for services is deemed to be an employee
(SI 1978/1689 reg 2(2)).

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By Ken Howard
10th Aug 2005 14:25

Probably employed
The fact that s/he has multiple "jobs" doesn't mean that self employment applies. It is possible to have several employments.

Do they provide their own equipment and supplies or do you provide them?

Are they paid "by the hour" or "by job"?

I would say that in most typical cases, they are "employed", but it does depend on the exact working relationship.

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By neileg
10th Aug 2005 14:51

Some more thoughts
If you are paying the cleaner as an individual, they may be an employee or self employed. The status, as others have suggested, is down to the exact nature of the contract (express or implied) between the cleaner and the cleaned.

A partnership or a limited company can't be an employee, so the question is not relevant. There may be IR35 issues, but not employment status ones.

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By frauke
10th Aug 2005 15:04

Self-employed or employee
I have a client who has been working for the same 2 companies part-time as a cleaner for 12 years. Although this is a long time ago, the reasoning is still valid today.

The Inland Revenue agreed that she was self-employed because she supplied all the cleaning items that she used including the equipment - even though the companies would sometimes provided storage. She also occassionally would include other services, which required specialist equipment (a carpet cleaner) which she also supplied occasionally as part of the service. She also is responsible for supplying cover when she is unable to do the work herself. (Normally only when on holiday).

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By User deleted
10th Aug 2005 13:51

Self Employed
Without any further details, it certainly sounds like a self-employment. The fact that they have several other cleaning clients would be the major factor for me.
You say 2 hours twice a week, how much control do they have over which days they come in?
Do they issue invoices?
Personally I would definitely treat them as self employed.
Iwan

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By stephenkendrew
10th Aug 2005 15:57

it depends
I think the crucial factor is whether the cleaner must do the work personally or is able to send a substitute and/or hire their own assistance.

If they must do the work personally then they are employed.

On the other hand, a number of cases before the courts have been decided in favour of self-employment because there has not been this obligation to do the work personally.

For example:-

In Echo and Express Publications v Tanton the judge said "where a person who works for another is not required to perform his services personally then as a matter of law the relationship .... is not that of employee and employer."

In the Ready Mixed Concrete case, which many other later cases (Montgomery v Johnson Underwood and Carmichael v National Power for instance) refer to as an 'irreducible minimum of obligation to create a contract of service' (ie employment), Justice MacKenna's three tests for a contract of employment included the obligation for a servant to "provide his own work and skill."

If the requirement to do the work personally does not exist then there cannot be a contract of employment.

See also the cases of McMenamin v Diggles and Ansell Computer Systems v HMIT where a substitute was never used but there was the right to use one.

The problem would be an IR35 issue if the cleaner operated as a partnership or limited company.

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By NeilW
11th Aug 2005 09:42

Not quite
If they must do the work personally then they are employed.

Nope. It ain't as simple as that. If they do the work personally and are required to do it personally then it is very likely they are employed but not conclusively.

For example if the 'employer' has no obligation to provide work and/or the 'employee' has no obligation to take the work in the context of an ongoing contractual relationship then it cannot be employment as a matter of law.

Similarly if the individual can choose when a service is performed it leads away from employment.

Essentially the only answer on employment status any professional can give is 'it depends', or 'it is likely that...' because each and every case is different and turns on its particular facts.

Partnerships make no difference to the employment argument. A Ltd Co. in the way makes arguing that the employment condition exists a tad more difficult, but not impossible.

And of course to make things even more exciting, 'employment' for employment law purposes and 'employment' for tax law purposes are subtly different arguments.

NeilW

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By neileg
11th Aug 2005 10:07

Neil
You said: Partnerships make no difference to the employment argument. Can you explain why you think this. Surely if the contract is with a partnership, you can't interpret this as an employment? I'd appreciate your views.

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By NeilW
11th Aug 2005 11:22

Partnerships don't exist as an entity in law (other than LLPs and they don't exist as an entity in tax law). They are just a bunch of sole traders. The question of whether an individual is required to personally perform a contract is one of fact, not construction.

Its not the partnership per se that helps. It is the business organisation that ordinarily springs up around the partnership that provides a degree of insulation.

Just teaming up with a cleaner friend and having a single bill head isn't going to alter the employment status of either.

NeilW

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