Questions our Employment & HR department have been asked this month

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23 May, 2017

Q. We have a Consultant whom works 4 days a week on a variety of projects. In light of the recent cases about self-employed status, is the Consultant self-employed?

A. Whether or not the Consultant will be self-employed will depend on a number of factors. Principally, a key factor is whether the Consultant considers that they are self-employed. This may be evidenced by the existence of a limited company in which they invoice through. If the Consultant considers that they are self-employed and understands the nature of being self-employed, then there is arguably less risk of any claim being brought. The large number of cases which have been brought (such as Uber, Autoclenz and CitySprint) have been on grounds of the enforcement of rights which workers are afforded. They have been successful, as the Tribunal has been reluctant to accept the presence of clauses within contracts which purport to demonstrate that the individual is self-employed, when reality suggests otherwise. In this regard, Tribunals will take into account whether there exists factors such as mutuality of obligation (whether the employer has a degree of control); the right to substitute (whether the individual can send someone else to carry out the assignment) and the provision of equipment to carry out the assignment.

Q. A team leader has engaged the services of someone externally to undertake work for the RP without the knowledge or prior authorisation of the Operations Director. Is the RP liable to pay the 'worker'?

A. In order to determine whether the RP is liable it is necessary to consider whether the Team leader was acting within the remit of his ordinary duties when commissioning the services of the worker i.e whether it was indeed his job to recruit staff. If it was not his job to recruit (which in this case it was not) then he could not reasonably purport to have been acting in accordance with his ordinary duties therefore proving difficult to establish that the RP could be vicariously liable for his actions.

Q. Can a former employee take for ill-health early retirement under LGPS regulations?

The LGPS Regulations suggest that a former employee can make a request to be considered for Ill-health early retirement as a deferred member.

An opinion from an Independent Registered Medical Practitioner (IRMP) must be made before making a determination as to whether to award; and, if so, at what tier. As the administrating authority, the RP must appoint the IRMP.

In order to have a prima facie case for Ill-health early retirement the following conditions must be met:

  • 2 years' qualifying service;
  • The IRMP considers the employee permanently incapable of discharging his duties of his employment; and
  • The IRMP considers the employee not immediately capable of undertaking any gainful employment.

For more information contact Laura Cieplak in our Employment & HR department via email or phone on 01772 220188. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

Learn more about our Employment & HR department here

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