How do I determine contractor status?
You must exercise reasonable care in assessing status and making a status determination, considering what the position would be if the contractor was engaged directly by the end user client instead of via a PSC.
Status is usually determined by looking a number of factors and how they apply to the contractor’s working arrangements. This is a difficult exercise that is usually carried out by employment and tax lawyers and it is full of grey areas. We have a toolkit that can help you navigate this process which Paul will tell you more about at the end of the session.
The key factors used to determine status are:
- Control:
- How much control does the end user client have over the contractor in terms of working arrangements (hours, place of work) and how the work is carried out? Or is the individual contractor able to determine how and when they work and without direct supervision of the end user client?
- Personal service:
- Is the contractor required to perform the services personally without the right to send a substitute? If there is a right to appoint a substitute is this subject to end user client approval?
- Mutuality of obligation:
- Is the end user client obliged to provide the contractor work with a mutual obligation on the contractor to accept that work?
Related FAQs
Again, the primary point must be that an open dialogue is held with that individual to understand their concerns and to properly consider the impact that not wearing PPE will have on their abilities to undertake their duties. Consideration must be given as to whether there are any parts of their duties that they can undertake and whether they can remain in their role. Engage with the individual to ensure that you understand their point of view. What other duties can they do if they cannot do fulfil all the duties of their role?
All employers in the UK are eligible to participate in the scheme. The purpose of the scheme is to allow employers to claim back employment costs if they have furloughed employees arising from the coronavirus crisis. Importantly this means the scheme is not limited to cases where the employee would otherwise have been made redundant.
Key points:
- Between 1 November 2020 – 30 June 2021, the government will reimburse employers for 80% of wage costs, up to a cap of £2,500 per month, with employers expected to contribute 10% of that 80% in July 2021 and 20% of that 80% in August and September 2021. Employers will still need to pay employer NICs and employer pension contributions (these cannot be claimed for).
- The scheme now also allows employees to return to work part time being on furlough for the remainder. See flexible furlough above for more information.
- The employer can agree to pay the employee more than it will be reimbursed but it cannot reclaim the additional amount or any other costs associated with the additional amount.
- The workers covered by the scheme are those who have been “furloughed” which is a leave of absence.
- Workers must be told about and agree to this change of status (see below).
- Employers have to continue to pay the furloughed workers and the Government will reimburse the employer.
- HMRC is administering the scheme and it has been extended until the end of September 2021
- Those who left employment and are re-employed and subsequently furloughed by agreement are eligible (please see the FAQ regarding redundancy and furlough above).
- Payments may be withheld if claims are based on inaccurate or dishonest information, or are found to be fraudulent. HMRC has put in place an online hotline for employees and the general public to report suspected fraudulent claims.
- The Government has made alternative help available for employers to continue to pay employees while the scheme is set up.
If your visa has expired or will do before you are able to safely leave the UK, you can apply for “Exceptional Indemnity” by contacting the Coronavirus Immigration Team. You will need to provide evidence as to why you cannot leave, which could include a positive Covid-19 test or evidence of being unable to make travel arrangements to leave the UK in time.
You should note that “Exceptional Indemnity” does not extend your leave, but temporarily protects you from adverse action being made against you as result of overstaying your visa.
Most rent suspension clauses in commercial property leases are unlikely to come to the assistance of the tenant. These clauses normally apply only where the premises has suffered substantial physical damage and are, as a consequence, incapable of being occupied, used or accessed. The coronavirus pandemic does not involve any physical damage to a property, loss from the crisis will be purely financial. Such losses then will not be covered by the landlord’s buildings insurance policy in a way that will allow a tenant to claim rent suspension.
Yes. You should be able to furlough a suspended employee subject to all other eligibility requirements however we recommend that you take advice on this before doing so.