Employment Rights

[Stargazer]

My son in law has been employed for many years by a small family firm of builders. More than twenty years ago he was self employed but permanently with this same Firm. I have just learned that if he is unable to work because of heavy rain or snow he is not paid for those times that he cannot work. I knew this was the case of a self employed person if they were "rained off" but felt sure this did not apply to an employed person. Which is correct? He has never been given a Contract so cannot refer to his terms of employment and surely this itself is illegal?

[TonyV]

Read this how is tax and NI paid?


https://www.gov.uk/working-for-yourself

[Buenchico]

Does your SIL pay his own Income Tax and National Insurance or are those deducted by his employer? Does he get paid holidays?

If he's on PAYE and getting paid holidays then he's definitely an employee of the firm (rather than self-employed). If those things don't apply then he's being regarded as self-employed but, if he's not free to accept or reject work at will, HMRC will probably regard him as an employee (meaning that he should still receive the rights afforded to an employee).

If your SIL is an employee he should have been provided with a 'written statement of employment particulars' within two months of starting work (or, if he was originally self-employed, within two months of becoming an employee of the business):
https://www.gov.uk/employment-contracts-and-conditions/written-statement-of-employment-particulars

A 'written statement of employment particulars' isn't exactly the same as a contract (which doesn't have to be provided in writing) but it encompasses many elements of it.

If your SIL is 'laid off' during inclement weather then he should receive full pay unless his contract (or written statement of employment particulars) provides otherwise. Even if the relevant document states that he won't be paid he's still entitled to £28 per day, for a maximum of 5 days in any 3 month period, as 'guarantee pay':
https://www.gov.uk/lay-offs-short-timeworking

For further advice (and support in getting things changed if he's genuinely an employee) your SIL should call the ACAS Helpline on 0300 123 1100 (M-F, 0800-1800). Several AB members have reorted quite long waits to get through but have said that the wait was worth it.

The foregoing assumes that your SIL isn't on a 'zero hours contract' (as, say, over 90% of workers in Wetherspoon's pubs are). That would severely reduce his rights (possibly to none) in the event of work being curtailed by poor weather. However employees on zero hours contracts would normally have a written contract stating so (which doesn't seem to apply in your SIL's case).

[AuntLydia]

Much simpler, Does your Son In Law have to do a tax return every year?
Yes = Self-Employed
Does he receive his money with Income Tax and NI contributions taken off ?
Yes = Employee

He will only have a contract of employment if he is an Employee.
Many small firms will keep workers as Self Employed status as they do not have to pay contributions or give any paid holidays etc. This in itself is illegal but it happens a lot.

[TonyV]

Did he ever have a cis card?

https://www.gov.uk/what-you-must-do-as-a-cis-subcontractor

[Stargazer]

My son in law is NOT self employed.
He gets paid holidays and tax etc are deducted by his employers. Should he be paid on a day that he cannot work because of rain and there is no indoor work as an alternative? Also is illegal to have not been given a contract?

[AuntLydia]

Yes your son in law should get paid if he is an employee and for any reason he is rained off -except if he is on zero hours contract. I have just asked my OH as he is in the construction industry. If an employee cannot work because of the weather they are either told not to come in or are sent home and they do get paid for that time. Regarding his contract or lack of it I would suggest his first port of call would be ACAS

[Buenchico]

>>> Should he be paid on a day that he cannot work because of rain and there is no indoor work as an alternative?

Answered in the 5th paragraph of my answer above.


>>> Also is illegal to have not been given a contract?

Answered in the 3rd and 4th paragraphs of my answer above. (i.e. employees do NOT have to be provided with a written contract but they MUST be provided with a 'written statement of employment particulars' within two months of commencing work as an employee).

See the links in my post for further details.

[Stargazer]

Thank you for your very helpful answers. However my question has nothing to do with income tax (he is on PAYE).
I need to find out if it is illegal for his Firm to withold pay for any days or half days that he is unable to carry out their work because of rain or snow. He is not on zero hours. Plus he has no contract or anything in writing so can they get away with it because there is nothing in writing? He is 49 and had been with the same family firm for almost 30 years. Many years ago he worked for them on a self employed basis and understandably was not paid for holidays and the inability to work because of bad weather. It seems as though they are applying the same criteria of non payment for "rained off"
days even though he has been an employee for about 20 years. And guess what? He is paid £12 an hour!

[Stargazer]

Thank you Buenchico and Aunt Lydia. I think your answers are very comprehensive so please excuse my inability to take it all in first time.