FCSA DISMISSES CAB CLAIMS ON BOGUS SELF-EMPLOYMENT

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Posted : 14 Mar 2016 at 16:27:32
Category: News

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The Freelancer and Contractor Services Association (FCSA) has rejected a report from the Citizen's Advice Bureau (CAB) which claims around 460,000 people have bogus self-employed status nationwide

The FCSA said the report is an over-simplification of the real situation, and that the report did not make clear that bogus self-employment is disproportionately found among lower-paid workers

The nationwide figure given by the CAB does not appear to factor in this disparity

FCSA data indicates 48% of self-employed workers are higher-paid professionals, such as managers, directors and senior officials

The CAB report surveyed 500 of its clients who may or may not be representative of the workforce as a whole

Julia Kermode, chief executive of the FCSA, commented: "Whilst it is positive that the Citizen's Advice Bureau is exposing some very poor practices, we are concerned that today's report may lead to pressure for a knee-jerk response to what is actually a very complex issue

" The CAB report claims that many people are told they are self-employed when government tests would indicate otherwise

Employment status can be a grey area, as HMRC and the DWP use different tests to determine status

The CAB claims that bogus self-employment status costs the Exchequer '314m annually and that lower-paid workers potentially lose out on '1,288 annual holiday pay and pay '61 extra in National Insurance contributions

The CAB is calling for a review of the applicable rules to increase clarity

Julia Kermode of the FCSA said: "We strongly oppose any bad practice and we will continue in our efforts to help rid the industry of any rogue firms

" - FCSA "Working time" can include time spent travelling to and from home for workers with no fixed place of work The European Court of Justice ("ECJ") has today handed down an important decision for businesses with "field" based workers (those with no fixed workplace) holding that time spent travelling between a worker's home and a customer's premises is working time under the Working Time Directive ("WTD")

The press release is here and the text of the final judgement here

This decision does not impact on workers who travel to and from a fixed place of work, such as an office and which travel time does not count as "working time"

For those businesses with mobile workers, this decision raises questions as to whether existing working arrangements, such as resourcing and scheduling, now need to be changed bearing in mind the working time and rest requirements under the Working Time Regulations ("WTR")

Also, should this time be paid? The UK national minimum wage ("NMW") legislation appears on the face of it not to require minimum pay for travel time between home and a place of work

However, a legal challenge that this time should be paid in some shape or form cannot be discounted - see Unison's comment here

In the meantime, businesses may well in any event now face pressure to change employment contract terms to pay for this travel time or incorporate it within the core hours a worker is paid for

What did the ECJ say? The case before the ECJ involved a group of peripatetic workers who had formerly worked out of a now closed regional office

They brought a claim in Spain arguing that their employer was in breach of the working time rules in calculating their working day as starting from arrival at their first assignment and ending when they left their last assignment, rather than from leaving their home to travel to the first assignment and arriving back at home from their last assignment

The Spanish court referred the matter to the ECJ

The ECJ has held that for workers such as these, the time spent each day travelling between their homes and the premises of the first and last customers "designated by their employer" constitutes "working time" within the meaning of the WTD

The journey was a "necessary means of providing those workers' technical services" to the customers

To only take the time spent carrying out the activity of installing and maintaining the security systems would "distort" the concept of what was "working time" and "jeopardise the objective of protecting the safety and health of workers"

This was reinforced here by the fact that prior to the closure of the regional office, journeys from the regional office to the first customer and back to the regional office from the last customer were part of their activity or duties

They were "placed in a situation in which [the worker was] legally obliged to obey the instructions of his employer and carry out his activity for that employer"

Here the ECJ found that during the necessary travelling time the workers were not able to use their time freely and pursue their own interests

An employer might change the order of the customers or cancel or add an appointment during the journeys and the workers would act on those instructions

The ECJ considered that concerns that time for such journeys could be abused could be dealt with by putting "in place the necessary monitoring procedures to avoid any potential abuse", which, whilst an additional burden for the employer here, was an "inherent consequence of its decision to abolish the regional offices"

The ECJ followed the Advocate General stating that given that travelling is an integral part of being a worker without a fixed or habitual place of work, the place of work of such workers cannot be reduced to the physical areas of their work on the premises of the employer's customers

The ECJ again alluded to the employer's decision to close its regional office commenting that "having lost the ability to freely determine the distance between their homes and the usual place of the start and finish of their working day, [the workers cannot be required to bear the burden of their employer's choice to close those offices

" Again this would be contrary to the objective of protecting the safety and health of workers required by the WTD

Whilst the ECJ's decision clearly focuses on the specific facts of the case before it and is arguably assisted by the ability to compare the arrangements prior to the closure of the regional office and after, it is clear that the three elements required for time to be "working time" under the WTD may be met in a variety of situations

those who have no fixed base) must now carefully review the working arrangements for these individuals bearing in mind that travelling time from home to the first customer of the day and to home from the last customer may well now be considered to be working time under the WTR

Inevitably there will be grey areas in determining whether an individual's travel time is working time which employers will need to grapple with on a case by case basis

Questions to consider include: o What is the position where a worker is not operating to a schedule of customers and times designated by his employer? The employer's control in this respect appears to be a key element in the ECJ's decision that the workers were not able to use the time freely to pursue their own interests and were at the employer's disposal

o Is the position different where a worker uses his or her own vehicle rather than a company one? Does it matter if the employer has no means of contacting the worker during the travel time? Whilst these facts were highlighted in the case before the ECJ, these issues were not of themselves determinative

What they do demonstrate is that determining whether a worker meets the requirements for journey time to be working time should be explored within the

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