Last week I was giving a talk to trainee golf club managers.
And being the fun trainer I am, I decided to put together a quiz to see how employment law proficient they are.
Don’t worry – they’re not meant to be experts; that’s why we exist, after all!
Usually, they manage to get a few questions right, but this time, EVERY single person got one particular question wrong:
Can the shop assistant in the pro shop be self-employed?
NO!
Follow-up question?
Can a house manager be self-employed?
NO!
General manager?
NO!
A shop assistant has to show up at their contracted start time…
They have to use the equipment in the pro shop (e.g. the till) to do their job…
They have to follow their employer’s rules about holidays, working hours, breaks, as well as the operational requirements – “Smile, ask if they would like to add a Mars bar onto whatever else they are buying, get off your phone, push the Under Armour clothing as we have a bigger margin on that” etc etc.
You can use the HMRC page to try and work out if they are self-employed.
But when clients have assured me that their staff are self-employed, it’s usually because the client has been creative in their answers to HMRC questions. Not because the staff really are self-employed.
A better way to evaluate the situation is to ask if this person could do the work at 3am from home, dressed in their pyjamas?
If the answer is, “Not 3am but otherwise yes”, then they are probably self-employed.
If the answer is “No, they have to be in the shop at 8am till 3pm”, then they are an employee.
Same for a house manager, same for general manager.
The biggest risk here is not an HMRC audit.
The big risk is an employment tribunal claim for unfair dismissal or discrimination when you go to end the “self-employed” contract.
Oh, and when they start the tribunal process, they’ll ALSO inform HMRC of the tax situation.
And then you’ll be liable for all the back taxes and NI contributions for up to 6 years of their employment.
Plus, a fine, of course.
So, if you have any “self-employed” people working in your business, and you don’t want them to do the work in their pyjamas, give us a call to work out how to best deal with them…
