This from an existing client on the payroll of a property company about a fellow worker
Man working for 25 years as a gardener solely for 1 company and paid 52 weeks a year. Doesn't present invoices and is paid gross weekly direct to his bank account.
He completes an SAR and pays his taxes to HMRC. It is claimed that his accountant doesn't know the answer and is "thick". I make no comment on this
The company has decided they no longer need him as he's 65 next week and given him no notice just a thank you letter
In my opinion he should be on the payroll and therefore entitled to redunadncy and notice
I think this is one for an Industrial Tribunal via ACAS. Anyone got alternative thoughts
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The parties colluded to keep the worker off payroll and now he's leaving, he wants to receive a severance payment? Really?
The parties colluded to keep the worker off payroll and now he's leaving, he wants to receive a severance payment? Really?
I've known employers push workers into taking this arrangement when it only benefits the employer.
Yet the gardener (or at least, his colleague) having apparently been content to be self employed for 25 years has decided that he wants to be classed as an employee when there is some money in it for him.
To be clear, on the limited facts, the gardener *should* have been treated as an employee all along. But for the last 25 years, he presumably paid lower NI as self-employed, treated various expenses as deductible that would not be allowable for an employee, etc.
It seems very much like having his cake and eating it to expect severance now.
It would be dependant on his circumstances - he would have to look at the cest such as it is as a start point. I would think that from the info you have he would certainly have a case. The company might find it cheaper to pay him redundancy than go to tribunal. He doesn't have anything to lose they've waved him off anyway.
I have seen a similar case (about 20 years ago) in a tribunal.
The ruling was that yes he was an employee and entitled to severence pay, but, the tribunal also ruled that he knew he was benefitting from the arrangement asnd they had the saving he had made in NI contributions, tax savings by being self employed, and reduced the award by that amount.
They also ruled that the "employer" would be responsible for any unpaid NI or tax, but whethere HMRC ever pursued it I don't know.
Whenever I see "interesting question" in the heading I shudder to think what ill-informed rant might be coming next. Thankfully, this one is genuinely interesting.
I doubt the gardener was presented with much of a choice in this arrangement and would have been unlikely to have appreciated the difference anyway. The lack of holiday/sick pay/pension & now scant regard to redundancy will in no way be compensated by the slight tax advantage he may have had.
Assuming her would be paid an hourly rate as the post suggests, I can't imagine what circumstances could allow for a gardener to work exclusively for one company, 52 weeks a year for 25 years that would amount to genuine self employment.
Unless there is more to it, I can't see how a tribunal could find anything other than him being an employee & entitled to all the rights therein - I don't really see this as him having his cake & eating it when the employer appears to be so much at fault.
We just don't know from the OP whether the gardener was offered any choice about this sham self-employment. For all we know, this could have been his choice.
And, with respect, Mr Roland, you've made a whole lot of assumptions about hourly pay, sick pay which aren't contained in the OP. In fact, the mention of 52 weeks' pay suggests that he did get paid even if he was on holiday or sick.
For all we know, this could have been his choice.
We'll never know. It's been going on for 25 years. And employers have responsibilities too (which include deducting PAYE when PAYE is properly deductible - but go way beyond that).
We just don't know from the OP whether the gardener was offered any choice about this sham self-employment. For all we know, this could have been his choice.
And, with respect, Mr Roland, you've made a whole lot of assumptions about hourly pay, sick pay which aren't contained in the OP. In fact, the mention of 52 weeks' pay suggests that he did get paid even if he was on holiday or sick.
Is idle speculation not part of the fun of this site? I note that the issue of an SAR report has been raised now so all we need is a reference to Nazis and this thread is complete.
I did not take the OP to mean literally 52 weeks, more to illustrate that it's not seasonal etc.
Glad I'm not the only one who thinks some people on this site take being pedantic to a whole new level.
Was he working 52 weeks a year - or effectively getting paid holiday?
Looks like an employee to me and suspect a tribunal would conclude the same
It seems almost certain he is a 'worker', but is he an 'employee'?
If he's an employee, he is entitled to redundancy pay (if there is actually a redundancy situation). Otherwise it's unfair dismissal, usually leading to compensation.
so as others have said, he should get some legal advice and make a claim
Hate to mention, have you/they considered TUPE?
If his "redundancy" is due to say sale of a property does he go with it like a faithful family retainer, in effect is it a redundancy or are they walking into unfair/wrongful territory here?
Think I would be consulting an employment lawyer.
Have client exactly the same - but he is happy to be SE. We did advise him that in our opinion he should be an employee. He vaguely broached the owner who seemed to indicate he would get rid of the chap (in the nicest possible way). And so the agreement continues. As in all these cases one probably will get away with it. Its only when the worker might have a gripe or something else happens that it ends up as a typical argument.
I'm no lawyer but, imho, he's a worker.
He needs a chat with ACAS.
Establishing the facts to an evidential level will be a big issue, though.
Just saying like, but if he's 65 next week, does he still have a year to retirement ?
If not, he might not be entitled to full redundancy pay anyway.
"The company has decided they no longer need him as he's 65 next week...."
Sounds like he has a cracking age discrimination claim.
The gardener had a meeting yesterday with his bosses.
I advised him to say little, listen a lot, not to accept anything offered but make copious notes.
To his and my surprise they immediately offered him 25 weeks redundancy and 3 months notice paid but not worked
Frankly I'm flabbergasted but very pleased - for once the good guy wins
Thank you for all your input
Hurrah !!