Legal Challenge

[elsergiovolador]

I have been contracting for a year and a half and have paid c. £43k in NIC and Tax during that time but will receive nothing as a result of being ‘deemed employed’ rather than being considered ‘self-employed’.

Have you not learnt that the more you put in the less you get back?

There are some exceptions to the rule of course.

The legal action will not stuff the party with donations, so there is no point wasting time on this.

[lucyclarityumbrella]

1) Is it true that an umbrella employee can only be furloughed if their employment was cut short due to covid?
2) If so, how would you evidence that?
3) Do you agree with this strange approach whereby "The umbrella has asked my agency to ask my source employer for written documentation that they wanted to hire me for longer but did not do so because of the Covid pandemic"

First of all, no employer HAS to furlough an employee. It has been put in place so that hopefully when we come out of the other side of this that people can return to their jobs. So I think they are completely within their rights to try and seek confirmation that the assignment ended because of covid and wasn't simply the end of your assignment and that can only come from the client. I would think it is down to the umbrella to seek that confirmation from the agency or end client for you, they can then make the decision as to whether to furlough you on the assumption the work may continue post this.

[Weary Contractor]

My Umbrella Company not Furloughing me as contract naturally ended

First of all this is an FCSA Accredited company, so may be worth going straight to the FCSA to see what their stance is on it It is also down to any individual business to decide if they want to furlough, it is not a compulsory requirement. Morally though it is another question. The biggest issue at present is working out the figures... as you may or may not have seen, many umbrella's structure their contracts at NMW plus discretionary bonus, which means that the current guidance says it must be based on 80% of the basic ie NMW. The FCSA are lobbying to try and get it to include the bonus too, but surely this then leads to bigger issues over how the umbrella is going to manage to foot the bill before receiving the funds from the government.



We have been incredibly lucky to date that none of our contractors contracts have ended due to CV, that said we are working hard to ensure that we promote any contract roles we see to try and secure roles for any whose assignments are due to end anyway via LinkedIn.

Hi Lucy,
My Umbrella are considering what to do - but essentially thus far I have been told that "My Umbrella Company is probably not Furloughing me as my contract naturally ended on it's original end date at the end of March, and I my reason for not being kept on was not due to Covid".

The umbrella has asked my agency to ask my source employer for written documentation that they wanted to hire me for longer but did not do so because of the Covid pandemic. (sigh)
In it's own way the above is true - even with a week or so to go, the end employer were talking to me about extending me, but ultimately with everyone working from home major change was deferred, so I was not extended.Whether people are willing to put all of that in writing is another matter entirely - they probably don't want to which is fair enough.

Questions 1) Is it true that an umbrella employee can only be furloughed if their employment was cut short due to covid?
2) If so, how would you evidence that?
3) Do you agree with this strange approach whereby "The umbrella has asked my agency to ask my source employer for written documentation that they wanted to hire me for longer but did not do so because of the Covid pandemic"

Many thanks for your time!

[lucyclarityumbrella]

Hi LucyClarity,I'd be interested in your thoughts on Umbrella company Furloughing.
My Umbrella Company (Sapphire) is not interested in Furloughing me, despire me starting on the payroll with them from Mid-Feb through to end of March, they just don't want to have the conversation.This is despite HMRC saying that it is OK for umbrella companies to do this, and that the conversation is between umbrella company and emplyee, not the agency.

First of all this is an FCSA Accredited company, so may be worth going straight to the FCSA to see what their stance is on it It is also down to any individual business to decide if they want to furlough, it is not a compulsory requirement. Morally though it is another question. The biggest issue at present is working out the figures... as you may or may not have seen, many umbrella's structure their contracts at NMW plus discretionary bonus, which means that the current guidance says it must be based on 80% of the basic ie NMW. The FCSA are lobbying to try and get it to include the bonus too, but surely this then leads to bigger issues over how the umbrella is going to manage to foot the bill before receiving the funds from the government.

Are you furloughing umbrella clients who's contracts have run out due to the Corona-shutdown?

We have been incredibly lucky to date that none of our contractors contracts have ended due to CV, that said we are working hard to ensure that we promote any contract roles we see to try and secure roles for any whose assignments are due to end anyway via LinkedIn.

[Weary Contractor]

My Umbrella Company not interested in Furloughing me

From what I can ascertain, you are only an employee if you had engaged with an umbrella company due to being determined as inside IR35, if you walked from the role then you are unemployed. If you wree workign via an umbrella then yes you are deemed an employee and as such as. long as you were on their payroll before 28th Feb then you are an employee and should be able to access furlough payments.

Hi LucyClarity,

I'd be interested in your thoughts on Umbrella company Furloughing.
My Umbrella Company (Sapphire) is not interested in Furloughing me, despire me starting on the payroll with them from Mid-Feb through to end of March, they just don't want to have the conversation.
This is despite HMRC saying that it is OK for umbrella companies to do this, and that the conversation is between umbrella company and emplyee, not the agency.

Are you furloughing umbrella clients who's contracts have run out due to the Corona-shutdown?

Many Thanks for your help

[lucyclarityumbrella]

Eek - I was not working in March as my contract ended on 28 February. As a result of IR35 regs I am deemed to be 'employed' but as my contract ended on 28 February I cannot be furloughed despite there being no work due to Coronavirus.

From what I can ascertain, you are only an employee if you had engaged with an umbrella company due to being determined as inside IR35, if you walked from the role then you are unemployed. If you were working via an umbrella then yes, you are deemed an employee and as such, as long as you were on their payroll before 28th Feb then you are an employee and should be able to access furlough payments.

[eek]

Are you self employed or are you via a LTD?

Given the forum I'm guessing via an umbrella until February 28th 2020 when the contract finished.

The phrase I would use is very unlucky...

Going back to the original question the £x,000 it would cost (probably £100,000 as it would be a judicial review) to pursue this case would be far better spent keeping you going.

[northernladuk]

Are you self employed or are you via a LTD?

[eek]

I am asking if it is worth mounting a legal challenge in relation to the fact that IR35 Regulations mean that while I am self employed in terms (no sick pay, no employment rights) I am deemed to be employed and therefore will not get a single penny of support despite there be virtually no work available. Had I been considered 'self-employed' I would have received support from the Self-employed Scheme.

No, I was not working in March - my contract ended on 28 February.

So you've been unemployed since March 3rd which means your only option you (sadly) have is universal credit.

Hey you have definitely been unlucky but you are just one of a lot of people in the same position (I'll happy introduce you to the numerous people who have been made redundant over the past few weeks who are in the same boat as you but not the guy that was made redundant and actually named on a call where everyone else was furloughed he is very rightfully very annoyed).

[PM Contractor]

Could you explain what you are talking about?

Were you working in March or were you unemployed?

And if you were working were you working via an umbrella company?

I am asking if it is worth mounting a legal challenge in relation to the fact that IR35 Regulations mean that while I am self employed in terms (no sick pay, no employment rights) I am deemed to be employed and therefore will not get a single penny of support despite there be virtually no work available. Had I been considered 'self-employed' I would have received support from the Self-employed Scheme.

No, I was not working in March - my contract ended on 28 February.

[PM Contractor]

Eek - I was not working in March as my contract ended on 28 February. As a result of IR35 regs I am deemed to be 'employed' but as my contract ended on 28 February I cannot be furloughed despite there being no work due to Coronavirus. Had I been considered to be 'self-employed' (which in real terms I am) I would have been eligible to claim support through the Self-employed Scheme, Basically I won't get a single penny of support purely as a result of my 'employment status'.

[PM Contractor]

What has that got to do with anything? Why should they? I will ignore this comment.

But they do don't they? No they don't. That's my point.

But you will won't you?

I don't get your point but I'm happy for you not to explain it me, thank you

[northernladuk]

A charity has just announced that it will mount a legal challenge regarding its clients (migrants with no recourse to public funds) being deemed ineligible to claim benefits during the Coronavirus crisis.

What has that got to do with anything? Why should they?

Should Contractors whose contracts ended on 28 February and who do not have access to any Government funds (including Universal Credit as a result of savings to see us through between contracts) consider a legal challenge?

But they do don't they?

I have been contracting for a year and a half and have paid c. £43k in NIC and Tax during that time but will receive nothing as a result of being ‘deemed employed’ rather than being considered ‘self-employed’.

But you will won't you?

[eek]

A charity has just announced that it will mount a legal challenge regarding its clients (migrants with no recourse to public funds) being deemed ineligible to claim benefits during the Coronavirus crisis.

Should Contractors whose contracts ended on 28 February and who do not have access to any Government funds (including Universal Credit as a result of savings to see us through between contracts) consider a legal challenge?

I have been contracting for a year and a half and have paid c. £43k in NIC and Tax during that time but will receive nothing as a result of being ‘deemed employed’ rather than being considered ‘self-employed’.

Could you explain what you are talking about?

Were you working in March or were you unemployed?

And if you were working were you working via an umbrella company?

[PM Contractor]

A charity has just announced that it will mount a legal challenge regarding its clients (migrants with no recourse to public funds) being deemed ineligible to claim benefits during the Coronavirus crisis.

Should Contractors whose contracts ended on 28 February and who do not have access to any Government funds (including Universal Credit as a result of savings to see us through between contracts) consider a legal challenge?

I have been contracting for a year and a half and have paid c. £43k in NIC and Tax during that time but will receive nothing as a result of being ‘deemed employed’ rather than being considered ‘self-employed’.