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Self-employed contractor?

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Mondaq who provide regulatory information to over 70 countries have recently published a helpful article to clarify considerations when categorising “self-employed contractors” and how to best position yourselves as organisations to avoid “misclassification”.  This comes as a result of the European Court of Justice ruling on the 27th November 2017, that misclassified self-employed contractors who are really workers or employees could claim back holiday pay all the way back to 1996, the year of the introduction of the European Union’s Working Time Directive. Previously, liability was limited to one or two years’ back pay in most cases that came before employment tribunals.

The article goes on:

“In all EU countries, workers and employees have the right to at least 4 weeks’ paid annual leave—in the United Kingdom, the Working Time Regulations are more generous, providing 5.6 weeks’ leave. By contrast self-employed contractors do not enjoy the right to paid annual leave or other benefits that depend on “worker” or “employee” status.

As recent cases in the “gig economy” have demonstrated, this can be a big issue when a contractor successfully challenges his or her status and is found to be a worker or employee. There can then be a back bill for the employer for the benefits that were not provided. In the past, these tended to be limited to the last two years—but this important judgment effectively removes that limit, so claims can go back to the commencement of the right.

The case—King v The Sash Windows Workshop Ltd—involved a window cleaner who now has £27,000 to compensate him for paid annual leave to which he would have been entitled had he been classified as a worker or employee.

The takeaway for those that use contractors is to look at their arrangements and assess the risk of misclassification. The factors courts consider include (1) whether the individual has his or her own business, which he or she manages and in which he or she invests; (2) whether the individual is paid a wage or by results; (3) the extent to which the individual is integrated into the business; (4) whether the individual is working on defined specific tasks; and (5) the extent of control exercised over what they do.

Preparing a good independent contractor contract will help, but it will not avoid a misclassification finding when used for someone who is in reality working as an employee/worker. As the saying goes—”if it looks like a duck, swims like a duck, and quacks like a duck, then it probably is a duck”. However, when most of the above factors support contractor status, there are some sensible practical steps organisations can take to minimise risks when drafting their contractor contracts:

  1. State in the contract that the contractor is registered as an independent service provider and include the local business registration number where applicable.
  2. Make explicit in the contract that the contractor will comply with all local laws and taxation requirements.
  3. Do not include the contractor in employee compensation, bonus, or benefit plans.
  4. Ensure that any badge, business card, or email address that you provide to a contractor clearly states that he or she is a contractor.
  5. Be careful with terminology. Use terms such as “services” rather than “work”, “liaison” instead of “supervisor”, and “defect in performance” instead of “discipline”.
  6. Include indemnities such as where a contractor agrees to indemnify the company or pay a certain amount if the contractor ever claims to be an employee. The legality of such clauses is a grey area, but it may serve to deter legal actions regardless.
  7. It can be a good idea to require the individual to set up his or her own company and contract with that company. This generally reduces the risk of misclassification”.

Please contact your Elcons Advisor to discuss matters on a case by case basis.


Brexit impact on UK employment Law: Working Time Directive

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Despite Mrs May’s speech on the 17th January this year setting out the priorities for the UK moving through Brexit…

  1. Protect workers’ rights

“And a fairer Britain is a country that protects and enhances the rights people have at work. That is why, as we translate the body of European law into our domestic regulations, we will ensure that workers rights are fully protected and maintained.

Indeed, under my leadership, not only will the government protect the rights of workers set out in European legislation, we will build on them. Because under this government, we will make sure legal protection for workers keeps pace with the changing labour market – and that the voices of workers are heard by the boards of publicly-listed companies for the first time”.

…there have been recent rumblings that government will look to erode employee rights following Brexit, potentially bringing an end to the EU Working Time Directive.

Should anything of substance emerge, be sure that we will communicate this to all clients and advise accordingly.

To access the full speech go to:

The High Court has ruled that, if allegations of sexual assaults committed by a doctor working for Barclays are proved true, the bank will be vicariously liable

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This case of Various Claimants v Barclays Bank Plc centres around a group of 126 claimants who are seeking damages from Barclays in relation to a number of alleged sexual assaults they were subjected to by Dr Gordon Bates. And it raises several important questions for employers to consider.

A woman has been awarded £25,000 in compensation after an employment tribunal ruled she had been unfairly dismissed after she became pregnant.

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She was initially employed on a year-long contract due to end in March 2016. She said her employer told her the contract would be extended for a year, but after the news of her pregnancy came to light she was informed this would no longer happen. She was later dismissed, shortly after announcing her pregnancy.


Employment tribunal fees unlawful, Supreme Court rules

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In a ruling hailed as a victory for workers, the Supreme Court says the Government acted unlawfully when it introduced the fees.

Unison has won a “landmark” court victory against the Government over fees for workers taking claims to an employment tribunal.

The Supreme Court unanimously ruled the Government was acting unlawfully and unconstitutionally when it introduced the fees four years ago.

According to Unison, the ruling means the Government will have to refund more than £27m to the thousands of people charged for taking claims to tribunal.

The decision marks the end of a four-year battle by Unison to overturn the policy.

The fees were introduced in July 2013 by Chris Grayling, then the Lord Chancellor in a bid to reduce costs and free up clogged up courts.

Unison argued that the fees of up to £1,200 prevented workers from seeking justice and were discriminatory toward women and other groups of workers.

Unions hailed the decision as a victory for workers’ rights.

“It’s a major victory for employees everywhere,” said Unison General secretary Dave Prentis.

“Unison took the case on behalf of anyone who’s ever been wronged at work, or who might be in future. Unscrupulous employers no longer have the upper hand.”

TUC general secretary Frances O’Grady said “tribunal fees have been a bonanza for bad bosses, giving them free rein to mistreat staff.”

“Too many low-paid workers couldn’t afford to uphold their rights at work, even when they’ve faced harassment or have been sacked unfairly.”

Gillian Guy, chief executive of Citizens Advice, said “this landmark ruling should mark an end to Employment Tribunal fees standing in the way of people upholding their employment rights.”

There has been no immediate reaction from the Government.

David Isaac, chairman of the Equality and Human Rights Commission, which provided independent legal opinion during the case, called for the current policy to be scrapped.

He called the Supreme Court ruling a “damning verdict on the current regime”.

“The right to justice must be based on the merit of your case, not your ability to pay. Thousands may have been denied of this right and priced out of getting justice,” he said.

“Women face a double penalty with high fees and short time scales to bring maternity discrimination cases.”

A review of the impact of the fees conducted this year showed there had been a 70% drop in the number of cases since they were first introduced.

Are you employees having a break?

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Even if you don’t tell your employees not to have a break, just sitting back and ignoring it could mean a claim!

Employees (over 18yrs) are entitled to 20mins break after working 6hrs.

They are also due daily and weekly breaks and failure to do so is a breach of Working Time Regulations – speak to Elcons for more information.

WTD: weekly rest period may be granted on any day in the reference period (Advocate General’s opinion)

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Advocate General Saugmandsgaard has given an opinion that the 24-hour weekly rest period provided by the Working Time Directive may be granted on any day in the seven-day reference period. In his view, Article 5 of the Working Time Directive should not be interpreted as requiring the weekly rest period to be granted on the seventh day following six consecutive working days. This is yet to be confirmed in case law.


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We are delighted to announce that we have a new guest speaker at our Employment Law and Health and Safety workshop here at Elcons on Friday June 30th 2017 at 10.00am


Danny Lacey CEO and Founder of Stada Video, will be delivering a short presentation on “How to grow your business through social media”.  Don’t miss out on listening to Danny who can only be described as a breath of fresh air and an inspiration to businesses.


Please reserve your place by e-mailing See you there!