Self Employed Diggers Again

[ecmgardner]

A landmark ruling in the high court about Freelancers who are deemed to be employees by Inland Revenue. So even if you pay your self-employed taxes you could still get stung if they disagree with your status - although I don't think as an archaeologist it'll be in the region of £99,000 like this IT contractor!

http://www.theregister.co.uk/2008/09/10/...ax_ruling/

[kevin wooldridge]

The case to which ecmgardner refers has one interesting (judges) definition of the difference between an employed and self employed person:

'that the control, appraisal and assessment of his work undertaken by AA manager's was like that undertaken in relation to an employee'.

It seems clear therefore that if you are treated like an employee, you are an employee.....

[BAJR Host]

this is interesting indeed... can we have some info if this is a general ruling, that will affect archaeologists?

"I don't have an archaeological imagination.."
Borekickers

[ecmgardner]

I'm afraid I don't really know much more...

I would have thought as we have a legal system based on precedent, this is definitely going to affect anyone who's been asked to be self-employed and shouldn't really be. I skim read the ruling (http://www.bailii.org/ew/cases/EWHC/Ch/2008/2113.html) and unless I'm mistaken most of it relied on the fact that there was no written contract between the self-employed IT contractor and his 'employer'.

I think the most blantent thing to be aware of is it's not the 'employer' who gets penalised, it's the 'employee'. I didn't see any mention of them having to pay backdated employers NI for instance. If the only person getting penalised is the freelancer then companies (not just in our industry) are going to keep trying their luck as there are no financial / legal implications for them.

[Oxbeast]

I suspect that the employee is only mentioned because they were the plaintiff in this case. I'm sure HMRC are now doing a full audit of the AA, finding all the 'self-employed contractors' and will act accordingly. It really isn't in their interest to ignore such a huge source of revenue.

However, this would not seem to be directly comparable to the archaeology situation in question, as this IT guy has his own consultancy which was contracted to work for the AA by an intermediary organisation. It doesn't really make the answer any clearer. If I were him, I would be suing everyone for providing poor advice/stitching me up like a kipper.

I see that the IFA has a lawyer of over 20 years experience on their books, Tim Howard. http://www.archaeologists.net/modules/ic...hp?page=39
It would be great to hear from him what exactly this judgement means, and what significance this has to the archaeological community.
I see

[drpeterwardle]

This case was about some of the usual defences against IR35 by somebody who "worked" for the AA for three years, at their premises, using their equipment and so on. As with all ruling like this it is about the complexities of definition in a particular set of rules. Theses issues arise because the IR35 criteria are indicators of employment/self employment and each one on its own cannot be taken as definative. In this case the actual person was employed by a company of which he was a share holder in (and thus paid tax) who contracted to a agency who provided work to a third party.

My understanding is that in such cases all parties have to pay the tax that they should have paid.

Peter

[BAJR Host]

Yes please tim howard....
a few words would be good

"I don't have an archaeological imagination.."
Borekickers

[monty]

once again its lay off time ! no contract - no notice 'we have no work next week, BUT there MAY be work the week after !!! how does this stand in employment law ?

[Oxbeast]

Well, it certainly wouldn't count as continuous service, but its not illegal. Is there really no finds to wash or basements/piles of samples to reorganise? I've heard of directors getting their gardens dug over by staff to keep them on during brief lulls....

This kind of stuff did used to be absolutely standard in archaeology in the old days. I reckon you'd be doing the whole industry a favour if you told them to stuff it.

[kevin wooldridge]

quote:Originally posted by Oxbeast

Well, it certainly wouldn't count as continuous service, but its not illegal.

Not so sure about that Oxbeast.

'Continuous service' for the purposes of various entitlements under UK employment law can include short breaks, particularly if the staff are laid off for reason of a slow down in work and then re-engaged when work picks up. Anyone who is in this situation should get legal advice (normally free through most trade unions), because there could be financial issues if you are eventually made redundant and/or chosen for redundancy.

It is not enough for an employer to claim that a break in service is implied merely because a contract comes to an end. We all probably know of numerous cases where contracts are renewed time and time agian until someone has eventually served 2 years and then 'acquires' the majority of UK employment rights. In that sense (and I have been saying this for the past 20 years or so) short term contracts in archaeology give the employer no greater or lesser protection than offering an open-ended contract with a fixed notice period.

You are right Oxbeast that it is not illegal for an employer to lay staff off because of a short term downturn in work. An employment tribunal however might decide that a number of short breaks can be disregarded in an otherwise continuous length of service. Most sensible employers faced with such a situation would concede this point before the situation reached a tribunal.


PS.... And please, please, please do not tell your employer to 'stuff- it' if you are in the right. Instead join a trade union, get your free legal advice, get the trade union to approach the employer and make a small step towards improving the lot of a large number of archaeologists in the same situation.