The question as to whether someone is employed or self employed is not as straightforward as it might at first appear. Many people assume they are free to choose, but this is not the case.
Although there is no clear-cut answer as to how you decide if you are self-employed or not, the following should be on your checklist.
Fundamental factors to consider:
- The right to get a substitute or helper to do the job
- Mutuality of obligations
- Provision of equipment
- Financial Risk
- Basis of Payment
- Opportunity to profit from sound management
- Part and parcel of the organisation
- Right of dismissal
- Employee benefits
- Intention of the parties
- Length of engagement
These are often matters of general employment law, and not specific tax legislation. There is an enormous amount of Case Law in this area and HMRC are not always right. HMRC do not have the final say on whether somebody is self-employed or not. We can argue your case and take it before the Tax Commissioners for you.
The cost if you get it wrong is enormous. Not only is there the question of employees and employers national insurance, being classified as an employee also gives rise to all sorts of employment rights such as holiday pay, maternity pay, unfair dismissal etc. The decision has to be made by the employer and if you get it wrong it is going to be very hard to recover the back tax, interest, penalties and so on from the employee.