Avoiding employment rights

**malvolio** · 4 July 2006, 13:53

This is a mare's nest, all the more complicated by the Muscat case. In reality, if you have employment rights now, after five years, you had them after day one, so your client's Human Remains are being stupid. There is no safe period, the only guranteed route is through a proper B2B contract - and even then, HR will try and screw it up.

Talk to your (ex-)line manager and get a direct contract against a purchase order for a given deliverable, and you can both tell HR to go play in the sandpit where they belong. Until someone takes this to court (I think PCG are looking for a test case if you want a battle to fight!) it is never going to be sorted, the decision in Muscat and the underlying case law is just too tangled.

**interested** · 4 July 2006, 14:23

Originally posted by malvolio

This is a mare's nest, all the more complicated by the Muscat case. In reality, if you have employment rights now, after five years, you had them after day one, so your client's Human Remains are being stupid. There is no safe period, the only guranteed route is through a proper B2B contract - and even then, HR will try and screw it up.

Talk to your (ex-)line manager and get a direct contract against a purchase order for a given deliverable, and you can both tell HR to go play in the sandpit where they belong. Until someone takes this to court (I think PCG are looking for a test case if you want a battle to fight!) it is never going to be sorted, the decision in Muscat and the underlying case law is just too tangled.

I'm not sure it is the case that you acquire employment rights on day 1 - they are broadly in line with those of a permanent employee which are acquired mainly after 12 months.

However - if you're doing a contract for 5 years I can't see how you are anything else other than a disguised employee?

**Zasky** · 4 July 2006, 14:33

I'm sure I am a disguised employee and, if I wanted to, would probably have a good case for claiming so. As I would rather be a contractor than a permie, and my client wants that too, you would think that it would be possible to make this happen. There don't have to be any losers here. As it is, my client will have to replace me with another contractor and lose 5 yrs experience in the company. Now that's daft.

**DimPrawn** · 4 July 2006, 14:43

Why don't you spend 30 minutes jotting it all down and contact your MP?

http://www.writetothem.com/

At least you will feel like you've got it off your chest and hopefully caused a small amount of paperwork for them ***** in Westminster.

**malvolio** · 4 July 2006, 14:48

Sorry, but you're both wrong. The principle in Muscat - that a worker was taken on under conditions equivalent to a permie and so he should be treated as a permie, including employment protection rights - applied from day 1 since the contractual conditions had not changed from day 1: what was contractually true on day 367 was no different. "One year and you're an employee" is a myth.

Equally five years or not does not make you an employee. There was a recent IR35 win when the guy had been on site for seven years. One of the coutner arguments is that is shows good commercial management to hang on to a client engagement for that long.

It's the contract makes you a permie or a freelance, and the conditions under which you work. If you are suddenly a employee, what about back holiday and sick pay and pension contributions, what are you going to do about all the VAT you 've charged, what about all the employer's NIs you've paid which you should now reclai from your "employer", what about lost interest on tax improperly paid that you want back... Just where do you start?

**interested** · 4 July 2006, 16:21

Originally posted by malvolio

Sorry, but you're both wrong. The principle in Muscat - that a worker was taken on under conditions equivalent to a permie and so he should be treated as a permie, including employment protection rights - applied from day 1 since the contractual conditions had not changed from day 1: what was contractually true on day 367 was no different. "One year and you're an employee" is a myth.

Equally five years or not does not make you an employee. There was a recent IR35 win when the guy had been on site for seven years. One of the coutner arguments is that is shows good commercial management to hang on to a client engagement for that long.

It's the contract makes you a permie or a freelance, and the conditions under which you work. If you are suddenly a employee, what about back holiday and sick pay and pension contributions, what are you going to do about all the VAT you 've charged, what about all the employer's NIs you've paid which you should now reclai from your "employer", what about lost interest on tax improperly paid that you want back... Just where do you start?

Sorry, I meant that the most common employment 'right' ie to claim for unfair dismissal, only applies after an individual has worked for 12 months irrespective of the number of hours per week worked (a fairly recent development)

**chunkymonkey** · 4 July 2006, 20:08

isnt this covered in the Opt out/opt in clause? I thought you lost your protection rights if you opted out etc or am I missing something more fundamental?

**Zasky** · 5 July 2006, 07:49

I don't believe this is something you can opt out of, though I don't know why and I'd be happy for someone to correct me on that.

**pickle** · 5 July 2006, 08:06

too long

Get another contract and move on. Five years is long enough for anyone surley? You say you would "rather be a contractor than perm", so get on with being a contractor. Or did you really mean "I would rather be paid like a contractor but have the working life of a perm" ?

Avoiding employment rights