Reply to: Beta ESS

[SueEllen]

Not sure that Uber is the best example.

On the face of it, the drivers do look self-employed, so it will be interesting to see what the appeal throws up.

(That's not to say they can't still be exploited).

Uber unlike black cabs, mini cabs and other taxis tell the driver the exact route. If the driver goes of the route they get penalised.

All other forms of taxis it is up to the driver to find the quickest and shortest route possible. Plus if the driver runs out of fuel they can stop at a petrol station if they want, but Uber drivers aren't allowed to do that.

Hence Uber fails on D&C.

[rob s]

Rumours from a show and tell this morning of one version of the tool say it's heavily RoS based and some mention of more than 4 concurrent clients.

Still may not be a current version of the tool & weighting so treat with necessary caution.

[malvolio]

Uber is interesting in many ways - and something as I've said before I've spent hours discussing with VC's on the West Coast.

but its not the topic on conversation here nor the reason for the my last post (which is that Mal seems to have changed his tune).

Really? I hadn't noticed; I've been saying that since at least 2003, and quite probably before then.

The real beneficiaries of IR35 are the employers, and always have been. For a reduced cost of employment - even for a higher day rate - and a far less onerous set of legal requirements they can persuade the employees that they are better off. It started with bankers, but also applies to the Civil Service, the BBC, many hotel chains, swathes of the NHS and social services, cockle pickers and on and on and on. Why do you think there is no pressure to remove it other than from us contractors?

[eek]

Not sure that Uber is the best example.

On the face of it, the drivers do look self-employed, so it will be interesting to see what the appeal throws up.

(That's not to say they can't still be exploited).

Uber is interesting in many ways - and something as I've said before I've spent hours discussing with VC's on the West Coast.

but its not the topic on conversation here nor the reason for the my last post (which is that Mal seems to have changed his tune).

[northernladuk]

The various Uber cases around the world springs to mind. I am sure a lot of other cases where it is the employer who is insisting that the workers are self-employed and not employees.

Poor example. Uber never considered themselves employers. That was the point of the case but we'll see soon I guess

This is other other side of the IR35 determination problem, any PSC caught "inside" by the tests should be able to bring a claim for employment rights, holidays, pensions, sick pay - the works. I can't imagine a situation other than a purposely botched "test case" (which happens more than you think) in which a Court could say "well, these tests show that you are subject to SDC, no real substitution rights etc so we will regard you as an employee for tax purposes but NOT AN EMPLOYEE for anything else".

Tax and employment law are slightly different and we've already been discussing this in great detail in other threads so not sure why we are on the brink of starting this all over again. Take this point (if there is one) to the other threads this is already being discussed. This one is about the ESS tool.

[teapot418]

The various Uber cases around the world springs to mind. I am sure a lot of other cases where it is the employer who is insisting that the workers are self-employed and not employees.

This is other other side of the IR35 determination problem, any PSC caught "inside" by the tests should be able to bring a claim for employment rights, holidays, pensions, sick pay - the works. I can't imagine a situation other than a purposely botched "test case" (which happens more than you think) in which a Court could say "well, these tests show that you are subject to SDC, no real substitution rights etc so we will regard you as an employee for tax purposes but NOT AN EMPLOYEE for anything else".

Not sure that Uber is the best example.

On the face of it, the drivers do look self-employed, so it will be interesting to see what the appeal throws up.

(That's not to say they can't still be exploited).

[breaktwister]

Anyone got any more ESS questions to post up?

[breaktwister]

So you are saying that there are a large number of people who are self employed due to their "employers" insisting on it, who really should be employees?

The various Uber cases around the world springs to mind. I am sure a lot of other cases where it is the employer who is insisting that the workers are self-employed and not employees.

This is other other side of the IR35 determination problem, any PSC caught "inside" by the tests should be able to bring a claim for employment rights, holidays, pensions, sick pay - the works. I can't imagine a situation other than a purposely botched "test case" (which happens more than you think) in which a Court could say "well, these tests show that you are subject to SDC, no real substitution rights etc so we will regard you as an employee for tax purposes but NOT AN EMPLOYEE for anything else".

[eek]

No, it is evidence that the real problem is the employers offloading responsibilities to both staff and HMRC should be the target of the sledgehammer. The major flaw in the whole clusterf*** is that the people making the decision not only aren't penalised for getting it wrong, their unethical economic savings are preserved.

So you are saying that there are a large number of people who are self employed due to their "employers" insisting on it, who really should be employees?

[malvolio]

Reread you final paragraph and you should be able to grasp why HMRC are taking a sledge hammer to the problem....

No, it is evidence that the real problem is the employers offloading responsibilities to both staff and HMRC should be the target of the sledgehammer. The major flaw in the whole clusterf*** is that the people making the decision not only aren't penalised for getting it wrong, their unethical economic savings are preserved.

[eek]

OK, so consider a hotel chambermaid on NMW. She has been told that each room needs to have a clean floor, the bed made up to a certain standard, dirty towels replaced with clean ones and stock levels in mini-bar and bathroom maintained. How she does it and in what order is up to her. The standard will be assessed by customer feedback and overseer sampling. Does that align to the SD&C tests being reported here to the same extent we claim independence in our work? It cab be argued both ways, which is why the tool can only ever be an indicator, not an arbitrator.

And remember that many hotel chambermaids are company directors

Reread you final paragraph and you should be able to grasp why HMRC are taking a sledge hammer to the problem....

[malvolio]

OK, so consider a hotel chambermaid on NMW. She has been told that each room needs to have a clean floor, the bed made up to a certain standard, dirty towels replaced with clean ones and stock levels in mini-bar and bathroom maintained. How she does it and in what order is up to her. The standard will be assessed by customer feedback and overseer sampling. Does that align to the SD&C tests being reported here to the same extent we claim independence in our work? It cab be argued both ways, which is why the tool can only ever be an indicator, not an arbitrator.

And remember that many hotel chambermaids are company directors

[northernladuk]

There is a difference between a detailed checklist documenting what part of a car needs to be cleaned andthe website example.

And a difference between requirements gathering and being give an list of things to do.

[northernladuk]

•The worker follows the end client's existing employee procedures and guidelines

This is going to confuse end-clients no end. For example, there might be site rules, safety rules and procedures that everyone onsite has to abide by. So if you are onsite in a safety conscious environment you are likely to be considered "inside" as you follow the same procedures and guidelines as other employees?

We've done H&S and Security policies to death. H&S and IT security apply to EVERYONE on site, not just employees.

[eek]

As a result of one of the cases, I think it might have been Autoclenz, HRMC stated that "there was a detailed specification given by the client and this amounted to direction". I can't find the link but will look and post. They now seem to have flipped their option as they were struggling to think of an "outside" example. I guess that when the full question set is released we shall see if they have flipped back when it suits them.

There is a difference between a detailed checklist documenting what part of a car needs to be cleaned andthe website example.