Employed to being self employed with same company

Hi Malcolm,

Thanks for your question. I have asked an employment lawyer colleague to have a look at it and then reply. Hopefully you should receive a reply shortly.

Below is a response to each of your 3 questions:

1. Can they insist that I become self employed?

An employer cannot insist that you become self employed. If you decline, then they would need to terminate your employment if they no longer require you to work there as an employee. Whether the dismissal is fair will depend on the reason for dismissal and the procedure followed.

2. Am I entitled to be employed for 3 months before becoming self employed?

If they terminate your employment, they are required to give you 3 months notice if that is your contractual entitlement or they would have to pay you in lieu of 3 months notice. If you agreed to become self employed, it would be down to you to negotiate whether that is immediately (by consent) or whether you want them to serve you with formal notification of termination and work your 3 months notice.

3. Will 3 months notice be enforcable by both parties if I become self employed?

If you become self employed, you will need to agree with the Company terms and conditions of your appointment. You would need to ensure that it was written into your contract that they had to give you 3 months notice to terminate their retainer with you/your services.

Please note that many self employed arrangements are a sham and the Tribunal will frequently find that the reality of the situation was that you were an employee. The fact that you pay your own tax and NI does not automatically mean you are self employed. The Tribunal look at numerous other factors when determining this issue.