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Why do you think the right wing want Brexit. All these laws will be changed so empoyment rights will be watered down to nothing. Liam Fox has already gone on record as he wants no fault dismissal. Hope the fools who voted for this nonsense realise the mess they've got us into
'Hope the fools who voted for this nonsense realise the mess they've got us into'
Hahahahah!
About time.
However I am not sure new legislation is required, but simply the existing legislation enforced, such as in this step here.
Its been there a very long time, and under any normal interpretations of the rules I was taught when training these are blatantly not self employed positions.
However lackluster compliance from HMRC has meant companies think the rules don't apply to them.
I had a n enquiry this week for someone working for a large business in the sales team. He is essentially the gang leader of a team of door knockers. The lot of them self employed, apparently, on the basis its commision only. But they all wear the company uniforms, work only for the company and have the whole system dictated to them in terms of how the unit is run. Its a completely bogus set up.
The judgment: https://www.leighday.co.uk/LeighDay/media/LeighDay/documents/Employment/...
Unless I'm misreading this it is a very odd ruling.
Ignoring the factors around control of the couriers (which aren't the overwhelming issue) the key point (4.1-4.5 in the judgment) seems to be that personally arranging a substitute is as much part of providing a personal service as actually delivering the parcels!
Using that logic it's impossible to ever be genuinely self-employed if you sign a contract which requires you to provide cover whether or not you're able and willing to provide the service yourself - i.e. to act like a proper business. It turns the whole concept on its head.
The circumstances surrounding the substitution clause seem to me to be entirely analogous with Express and Echo Ltd v Tanton, without any complications introduced by rulings in subsequent cases.
To be clear, I think that natural justice says that they should be classed as 'workers' but I really can't see that the current law has been correctly applied in this case.
The accounting for contractors/self employed is muddy at best. You have people quoting IR35 to not pay for training, whilst still allowing use of a canteen and parking facilities.
There is a big difference between the person who does an occasional perfume promotion gig and a company like Hermes, where frankly it's very difficult to suggest that the individual can pick and choose the work they do.
There is a big difference between the person who does an occasional perfume promotion gig and a company like Hermes, where frankly it's very difficult to suggest that the individual can pick and choose the work they do.
The point is that in this case the evidence was that they could pick and choose. Hermes presented the evidence badly and tried to over-egg the pudding but if they'd stuck to the facts there was clearly both a theoretical and actual right to substitution, albeit only to people who Hermes didn't consider unsuitable.
The problem stems from the fact that there is no definition of self-employed. There are guidelines and, of course, the stupid tribunal decision that decided on substitution etc.
All this is to do with employers NI. Is it really wrong for a company to re-classify its workforce (if they are willing) to become more profitable?
I bet there are couriers out there that are really [***] off.
The ball is in this wishy washy governments hands. We have all been telling them for years employment status needs sorting.
It's all coming to a head, exciting times.
So Hermes get a big tax bill and go bust - great. Or won't HMRC try to impose a retrospective approach?
It won't have any effect on the tax position, the first paragraph of the judgment makes that clear: "There is no dispute that these couriers are self-employed". The judgment says that they're also 'workers', as well as self-employed, and entitled to workers' rights.
Then the judge has made a big error.
This is EU crap. In my mind you're either employed or you're self-employed. If you're employed you get all the trimmings. If you're self-employed you don't. Then along comes the EU with a "worker", entitled to holiday pay etc. Yes there are greedy people that want the best of both worlds and look what a mess employment status has now become and with the EU law becoming enshrined in ours, more mess to come.
The Government is learning that it was the Gig economy that got us into mess with people having to work all hours with no basic protection. like zero hours where individuals have to sit by their phone to find out if the are working that day. This cannot be right.I mentioned this before HMRC rules state you cannot be classed self employed unless you have 3 sources of income. Its sad that it has taken the courts to rule on this. May says she hears the the "forgotten" part of the population but in reality its the courts who rule that this setup is not fair
"HMRC rules state you cannot be classed self employed unless you have 3 sources of income"
It's very well established in law that this is not the case.
In a lot of cases HMRC rules are not law nor do they come anywhere near an interpretation of the law. However as no one has reprimanded them they feel they can do what they like and on many occasions get away with it.
It's not even HMRC 'rules' though. Whether it was in the past I don't know but certainly since their manuals have been available online there has been no suggestion that they operated that rule. And to my personal knowledge from being in business since 1982 they haven't operated any such rule.
Don't you remember the "6 month rule". HMRC decided that if you worked for one company for more than 6 months you had to re-classified as employed. They got away with it for a while.
Hermes couriers are a bunch of thieves. I know this because I had first hand experience as a customer Services advisor whilst at the same time being a customer.
The couriers message said “delivered at 8:45 signed for by customer”
My wife and I were both at work at 8am and the signature was not ours.
I telephoned the courier immediately and he ummed and aarghed when I advised him that as well as being the customer services advisor I was also the customer.
He concocted a story about him leaving it in the back garden. My wife went home at lunch time but the parcel was not in the back garden, however it was there at 6pm when she arrived home after work.
This was typical of 90% of complaints received in customer Services.
Thieving bar stewards
Presumably, as workers, they will start paying tax at source (PAYE) and won’t be able to re-claim their motoring costs (travel and purchasing costs).
Be careful of what you wish for.
No, because the judge made it clear that there's no dispute that they are genuinely self-employed. The ruling was that they're classified as workers for employment rights, not as employees for tax purposes.
How can a judge award "Employment" rights when you are not "employed". When you work for yourself "self-employed" you make your own rights so how on earth can you be entitled to other business rights. Oh yes, of course, the EU says you can.
Well that's exactly what the Hermes couriers went to court to prove - that they are self-employed 'limb (b) workers'.
'Limb (b)' refers to Section 230 paragraph (3)(b) of the Employment Rights Act 1996 - UK legislation which is over 20 years old. It is though, as you correctly suggest, enacting an EU definition of 'worker'.
Without that EU definition these couriers would be very clearly self-employed under UK law and not entitled to any employees' rights at all.
And that is exactly how it should be. "Workers" in this case are clearly using the term to try and get the best of both worlds.
I have to presume, under EU law, that the judges hands were tied.
Reading between the lines I suspect that the judge decided that the Hermes representative wasn't playing with a straight bat and handed down this perverse judgment so that the case would get bounced to a higher court.
As I said, it might be a morally correct judgment but I don't think it will stand in law. And Hermes get another two bites at the cherry to get it right of course. An appeal might still side with the couriers but I'd be astonished if it was on the basis that arranging a substitute could be regarded as part of the personal service the courier is alleged to be obliged to provide. I fully understand the argument but it's ridiculous.
Personally I think that the evidence from the couriers that they used family members to carry out work and one of them had several rounds with people carrying out work for him is enough to prove that, according to the law, they're self-employed rather than workers or employees. Can a judge send her son into court to carry out her work? Can a shop-worker send his mother in?
Something obviously needs doing about this but misapplying existing law isn't the answer.
My thinking exactly. If I was trying to avoid this issue then the couriers would all be franchisees with the 'right' (and obligation) to deliver all parcels in their allotted area. Job done, no chance of ever being deemed a worker or an employee. And they could actually operate as the businesses the company wants them to appear to be.