Q&A - Can dismissed self-employed worker take me to a Tribunal?

30/07/2012

Q:  I engage a number of entertainers to work in my restaurant bar six nights a week. They work on a rota basis and are treated as part of the team, attending meetings etc., but they are all self-employed. One of them has let me down several times recently, and because I was unable to fill her slot in time I decided to terminate her contract and engage someone more reliable. Now she says she has made an appointment to see a solicitor about taking me to a tribunal for unfair dismissal because she had a valid reason to be off work. How can she do that when she is self-employed?

A:  If your entertainer is unquestionably self-employed she cannot take you to a tribunal for unfair dismissal. However, I am slightly concerned by the fact that you say she attends meetings, is treated as a member of your team and appears to have a contract requiring her to turn up to work under your management, on your premises, on a regular basis, at specific times. The definition of self-employment could, under those circumstances, be in question.

In a recent tribunal case it was ruled that because there was a degree of control by the management, combined with the regular nature of a rota, an expectation of work was created which was tantamount to ‘employment' and the restrictions and disciplinary procedures imposed effectively created mutuality of obligation between the parties.

It is not unusual to use self-employed workers to add flexibility to the workforce, but business owners must ensure that they get the details of engagement correct in order to protect themselves and prove the worker's self-employed status. Getting it wrong can be costly, so taking legal advice to clarify that the terms of any agreement are in line with your intentions before you engage someone can be advantageous.

Robert Williams

Robert Williams

Partner

A Partner and Head of the Civil Litigation, Personal Injury and Dispute Resolution team in Wrexham