Reply to: Do I have any rights?

[LisaContractorUmbrella]

There have been quite a few cases where people we would class as contractors have successfully claimed employment rights - as you say the edges between employment and contracting seem to be blurring but then again that is in the interests of the HMR&C. Interesting that the BBC came out today and said that they had changed their policies because 'public perspective' of PSC's was that they are avoiding tax - lots of misinformed people out there methinks

[northernladuk]

IR35: Sacked Contractor Sues HP for Unfair Dismissal

[northernladuk]

There was a case about 5 years ago I think where someone worked for a large corporate for 8 years and tried to claim worker rights when he got binned and that failed but I can't find it...

Interestingly though there is a recent case where a hair transplant specialist did contract work for a trust and the court of appeal ruled he did have rights as a worker.. I don't think this is good new for us personally but there you go...

Hair raising Court of Appeal decision for employers

Sure the rights you will in will be overshadowed by the crap you will be in when HMRC come wanting what is right for them as well.

[northernladuk]

If HMRC come calling I am not sure that he would see it as the best thing that could ever happen I can't imagine how awful your life would have to be for HMR&C to be the best thing in it

I meant him getting binned off this contract

[LisaContractorUmbrella]

I have feeling the OP hasn't a clue what IR35 and put himself firmly inside while doing his finances for outside. This could be the best thing that has ever happened to him so he can got get a proper contract and spend the next 6 years HMRC don't spot him (or in blissful ignorance again

If HMRC come calling I am not sure that he would see it as the best thing that could ever happen I can't imagine how awful your life would have to be for HMR&C to be the best thing in it

[northernladuk]

I have feeling the OP hasn't a clue what IR35 and put himself firmly inside while doing his finances for outside. This could be the best thing that has ever happened to him so he can got get a proper contract and spend the next 6 years HMRC don't spot him (or in blissful ignorance again

[LisaContractorUmbrella]

True, of course - where the worker has sued for employment rights. It depends on several factors of course, but the only likely right here - gien the job has gone away - is for redundancy; that would be a narrow call for someone not currently on an employment contract: you can easily argue that the contractor's day rate includes the cost of the risk as a rolling upllift.

Redundancy not an issue if the contract is through an agency but not so if the OP is going direct

[LisaContractorUmbrella]

Would that not place the OP firmly inside IR35? The penalties and taxes may well outweigh any benefit of implied employment.

Yes, if he has been operating outside which is why I would imagine so few of these cases come up

[sal626]

I think I may be clutching at straws a bit but I have been quite harshly dealt with by this company over the past 6.5 years and would like to cause them a bit of pain in return!!!

Honestly, it'll just be easier moving on.....

[Maslins]

I think the reason you're getting slightly narky comments from other contractors, is that they get a bit fed up with people who try to bend the rules to suit them both ways.

I imagine if asked over the last 6.5 years you'd have strongly argued you weren't an employee, hence were outside IR35, based on some spurious arguments.

Then, the second things turn sour with the contract all the old arguments that proved you were a genuine contractor magically disappear and evidence you were an employee all along suddenly materialises.

In short, if you've been a contractor for the last 6.5 years in broadly the same role, then you're still a contractor now. In that case, I'm afraid you have naff all rights.

[malvolio]

Sorry to play devils advocate but that's not strictly true - if an employment tribunal were to review the case they would not only examine the contract, they would also try to establish whether there was an 'implied' contract of employment and therefore whether the OP has any employment rights. There are a number of precedents where the courts have over-turned what was agreed in a contract

True, of course - where the worker has sued for employment rights. It depends on several factors of course, but the only likely right here - gien the job has gone away - is for redundancy; that would be a narrow call for someone not currently on an employment contract: you can easily argue that the contractor's day rate includes the cost of the risk as a rolling upllift.

[JamJarST]

Sorry to play devils advocate but that's not strictly true - if an employment tribunal were to review the case they would not only examine the contract, they would also try to establish whether there was an 'implied' contract of employment and therefore whether the OP has any employment rights. There are a number of precedents where the courts have over-turned what was agreed in a contract

Would that not place the OP firmly inside IR35? The penalties and taxes may well outweigh any benefit of implied employment.

[LisaContractorUmbrella]

You can't have it both ways. If you want rights, you need to be an employee. You aren't one, you are by your own admission a contractor. Ergo, no rights beyond the stated terms and conditions in your contract. So go read it and find out what they are: probably not too many, at a guess.

But if there's no work to be done, why do you think you have a right to anything? Surely you don't imagine an end client is gong to pay a temporary resource not to work when they're no longer necessary? You're a contractor (says you) so go look for the next gig.

As for "wind up", you don't decide whether or not you're an employee, nor does length of contract. Asking a bunch of contractors a really dumb question like yours is one sign of someone pretending they're someone they aren't and trying to get a rise out of the other posters (aka a "sockie", short for sock-puppet).

And welcome to the real world.

Sorry to play devils advocate but that's not strictly true - if an employment tribunal were to review the case they would not only examine the contract, they would also try to establish whether there was an 'implied' contract of employment and therefore whether the OP has any employment rights. There are a number of precedents where the courts have over-turned what was agreed in a contract

[malvolio]

Eh? You've confused me there b0redom!
Firstly, forgive my ignorance, but what is a sockie????

Secondly, why do you think its a wind up?

Thirdly, what part of my contract are you referring to?

Fourthly, I've stayed this long because of the location - Its close to home and I've lived away from home for quite a few years.

Sorry if you think I'm a wind-up! I'm not. Perhaps I'm quite naive as far as contracting goes as this is only my second one!

You can't have it both ways. If you want rights, you need to be an employee. You aren't one, you are by your own admission a contractor. Ergo, no rights beyond the stated terms and conditions in your contract. So go read it and find out what they are: probably not too many, at a guess.

But if there's no work to be done, why do you think you have a right to anything? Surely you don't imagine an end client is gong to pay a temporary resource not to work when they're no longer necessary? You're a contractor (says you) so go look for the next gig.

As for "wind up", you don't decide whether or not you're an employee, nor does length of contract. Asking a bunch of contractors a really dumb question like yours is one sign of someone pretending they're someone they aren't and trying to get a rise out of the other posters (aka a "sockie", short for sock-puppet).

And welcome to the real world.

[Wanderer]

do I have any rights as laid down in the Agency Workers Directive?

Possibly, but for most of us it's not our style to work under the AWD so we probably can't advise you. Nor can we comment without seeing your whole contract and reviewing your working practices.

If you were working as a contractor getting paid an equivalent permie wage pro-rated then you have been taken for a ride. If you were paid a contractor's rate to cover your extra expenses then most people here will say that you should just suck it up and move on.

why do you think its a wind up?

Typically people like yourself come on the forum and drip feed information which annoys people and winds them up. Not suggesting that you are, but some people even do this for fun. Getting into an argument about it here is a waste of everyone's time because what most of us would do is take it on the chin and move on.

The best advice I can give you is to either take it on the chin and move on or go the the Citizens Advice Bureau, take along a copy of your contract and have a long chat with them as they may be able to be genuinely helpful if you do indeed have some legal rights (which is unlikely).

Good luck!