Being asked to be put on payroll

S

student2301

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I work in the hospitality industry and am soon returning to work after over three months off due to the coronavirus situation. Unfortunatelty, although I am paid by bank transfer rather than in cash, I am not on payroll, therefore I have not been able to receive any furlough pay. The same situation applies to the others, approximately a dozen, who I work with. We are all part time, mainly students, and although some of us often work enough on occasional weeks to both a) pay NI contributions and b) make our employer eligible to pay employers NI, none of us consistently earn above the threshold every week.

In our bank accounts, our wages have the reference “*employer name* fees” rather than “*employer name* wages”, which we were told was on the advice of the employers accountant. As we are set to reopen soon, I asked whether I could be put on payroll. I did this seeing as we face the real possibility of a second wave and all areas of hospitality closing once again, hence another loss of income. I was told this couldn’t be sorted by opening (understandably as there is lot of prep to do) but that when me and my boss meet in the week after reopening I should bring my contract to discuss this. That worried me slightly as I would thought it would have been a legal right for employees to ask to be put on payroll, rather than something that is up for discussion.

In terms of the contract, the only thing I can find that relates to this situation is a section which states “the contractor [member of staff] is responsible for their own tax”. Does this essentially get rid of my right to be put on payroll? For transparency, it’s worth mentioning that when I asked to be put on payroll, I also said I am happy to be doing less than 20 hours a week (20 hours a week at minimum wage for 21-25 year olds would be just under the NI threshold for employers) during the time in which hospitality is under restrictions. Limited capacity and other restrictions means doing over 20 hours is unlikely anyway, although i did specify that the hours cap would be for “until we are back to normal” (ie when hospitality can return with no social distancing restrictions etc). The contract itself does not state any minimum or maximum hours, as we are essentially zero hours contract workers.

So basically I was wondering where I legally stand with this? If I am refused the right to be on payroll is that allowed? Also does the whole situation sound dodgy or completely normal for small businesses in hospitality?

Thanks a lot if you can help!
 
student2301 said:
ah yes! Sorry I didn’t realise this was an Irish forum! Cheers for letting me know :)
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The principle is the same in Britain and in Ireland.

The restaurant is treating you as a self-employed sub-contractor rather than as an employee. The room for discussion is based on the possibility that they may decide to hire you as an employee.

However while your contract may describe you as a self-employed sub-contractor, the law may define you as an employee despite what is in your contract. There is an overview of UK law here https://www.gov.uk/employment-contracts-and-conditions.

If you have been incorrectly classified as self-employed you will could challenge that and if you are successful the upside would be substantial, in terms of NI, Holiday pay and tax (any tax liability will fall on the employer rather than you). Your "employer" would of course be very unhappy with you.
 
cremeegg said:
The principle is the same in Britain and in Ireland.

The restaurant is treating you as a self-employed sub-contractor rather than as an employee. The room for discussion is based on the possibility that they may decide to hire you as an employee.

However while your contract may describe you as a self-employed sub-contractor, the law may define you as an employee despite what is in your contract. There is an overview of UK law here https://www.gov.uk/employment-contracts-and-conditions.

If you have been incorrectly classified as self-employed you will could challenge that and if you are successful the upside would be substantial, in terms of NI, Holiday pay and tax (any tax liability will fall on the employer rather than you). Your "employer" would of course be very unhappy with you.
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thanks for your reply. Our contract is actually a “contract for services”. I didn’t really think about the wording until I read the bit in the link you sent regarding this. It says:

“If a person has an agreement to do some work for someone (like paint their house), this isn’t an employment contract but a ‘contract to provide services’.”
Although, I wouldn’t have imagined this applies to me seeing as the services I provide are to the business rather than an individual. Our contract also says we are not in any circumstances entitled to holiday pay, bank holiday pay or sick pay (which I understand as I don’t know of any small businesses in this industry that offers this, with the exception of an unwritten informal policy of extra pay on say Christmas Day for example.
The contract also says that i an not entitled to any employment law rights? Can this be legally written in the contract?? Seems very odd.
 
student2301 said:
The contract also says that i an not entitled to any employment law rights? Can this be legally written in the contract?? Seems very odd.
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Well they can write anything they wish in the contract. The first question is if it is legally valid, the second question is, what can you do even if it is not legally valid.

Well a way you could challenge is to report the employer to HMRC, I think you can do this anonymously. While HMRC don't care about your employment rights, they are collecting less Tax and NI than they would if you were an employee, so that if they consider that you have been misclassified they may act.
 
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