Employment law - being made redundant but want to sub contract work back to me?

[marmacc]

Hello,

 

Need to get to the bottom of this pretty quick.

 

THe company I currently work for have identified my role as at risk due to it not being financially viable. I agree and to be honest will be happier out working for myself.

 

When I start up my own buisiness, the company I will be leaving have a number of commissions that they really could do with me finishing and hence I have suggested the easiest thing would be to sub contract the work back to my limited company. The 'boss' is open to the idea but is not sure if he legally can. Does anyone know if this is correct?

 

My view is: I am in agreement the full time role I am currently in is no longer viable and once my contract ends I can't see why they shouldn't sub the remaining bits of work to me - it gives me a starter for 10 meaning I have some income on day 1, and makes sure they deliver what they committed to for their clients. It seems crackers that the law would force them to give it to some other self employed person!

 

thanks

[Conniff]

If it's the same work, then it's can't be redundancy. It's the job that is redundant not the worker.

[marmacc]

Hi Coniff,

 

Yes understand that principal. However, I was full time busy but current forecasts look like it less than a day a week and will end at the end of the year, hence my role no longer viable. They will not have anyone capable of completing the comission without me, but clearly can't afford to keep me on full time and I can't accept part time (1 day a week).

 

Do you have a view on the legalities of sub contracting the remaining work back to a ltd company owned by me?

[mariefab]

If the Company no longer needs a full time employee to do your work your role will be redundant as a 1 day a week role wouldn't be a suitable alternative.

 

In the circumstances subcontracting the remaining work to you seems like a sensible solution.

Just make sure you come to a reasonable agreement on your availability so that you are free to find other work.

[steampowered]

I think this is fine. People move from employment to being a contractor all the time. If your employer wants to make a payment for that (instead of making you redundant) I don't see why that's a problem.

 

If your employer wanted to formally make you redundant then subcontract you I think that is fine too, the definition of redundancy includes "the fact that the requirements of that business for employees to carry out work of a particular kind have ceased or diminished or are expected to cease or diminish." - see http://www.legislation.gov.uk/ukpga/1996/18/section/139

 

Just remember that your employer has no obligation to give you work unless it is written into the contract.

[Sun&Moon46]

Where are you worried the challenge to the legality of this is going to come from?

 

If it is you being made redundant, and presumably paid a redundancy? and then offered some contracting work, so again you benefit, who is going to challenge that? Are there others who do the work or could do?

 

What is your concern?

 

If the offer of the contracts is at the expense of any redundancy payment then if you are happy with that, I would make sure that there was something drawn up confirming the arrangements.

[ericsbrother]

If you are happy with that then I cant see a problem as redundancy can be for "operational reasons" and this would appear to fit that definition, if not one of the other lawful ones. Make sure that you are paid for the work contracted, not for time,and also insist on being paid without deductions as you are not really a subcontractor but fulfilling a contract of work, not employment. The difference id they can calculate your tax and NI and deduct it whereas you dont really want that at this stage but make your own arrangements so you dont have to go to the bother of claiming it back in a year's time.

[marmacc]

thanks people.

 

Moon & Sun - At this point, my employer thinks that they can't sub work back to me becuase that would prove I am not redundant. They now realise that they can't finish some comissions without me, and they are contractually bound to them, plus I am named and cant be swapped without the company getting the client to agree the replacement is of appropriate experience/qualifications etc. Hence, it would be easier for them to just sub it back to me but they are worried it will allow me to claim that I was not redundant. Hope that makes it clear. If I can leave, and get two of my schemes at a decent sub contract rate, it would leave them more profit, give me half a years incomes and only take up about 3 months out of the next tweleve so I am keen to make sure they do sub me the work.

[Sun&Moon46]

I understand their worry, but surely if you are getting the work, you are unlikely to pursue them through the ET?

 

Redundancy is where the work has ceased or diminished, so the job doesn't have to go completely, just reduce. I suppose the question is, why can't you just stay an employee until the contracts are complete? I think you said there was about a day a week from it being five, seems like it's diminished to me...