Hired as 3rd party contractor, actually an employee (without the benefits)

CurryFlavoured

Hi all,

Have an issue at work. I was hired as a 3rd party contractor (as per my contract) for a temp role. At the time, I didn't think much about the term 'contractor' and the nature of my work, as the work was only for 5-6 weeks originally, but after my flight abroad was cancelled I've been working there about 4-5 months.

I recently enquired about holidays with work (as I should've built up about 40hrs) and was told that I'm not entitled to any as I'm not an employee. I was not aware of the differences between 3rd party contractor vs employee upon signing the contract (naive I know) but accept that I don't have holiday entitlements as a contractor having read into this.

My issue is that I am in fact an employee in everything but name. I wear company uniform, have company email, operate under their management and work at the sites I'm designated by the company. There is nothing I do 'independent' of the company. My working week is no different from the 'employees' at the company. As such, I feel like I've been wrongly labelled a contractor so that they can avoid paying me benefits such as holiday pay.

So my question is, should I chase this up (with work themselves or workplace relations) to try re-gain that holiday pay I feel that I have earned?

If it's a black and white case where I have no entitlements since I signed up as a contractor, I'll take my medicine. But if anyone has experience with this and feels like I've been screwed over and should pursue it, please let me know.

FYI I should note that the info in my contract is minimal. They don't say that I am or am not entitled to annual leave or overtime - it's not mentioned. But they do state that I'm a contractor.

Any help is greatly appreciated

jhegarty

Your bigger issue is tax. You know as a contractor you need to pay your own tax ?

CurryFlavoured

Yes I'm aware of that, thanks

Wanderer78

could be a tricky one, id imagine theres far more in favor with the company than with you, the joys of the world of growing job precariousness, i suspect if you go down the road of labor relations, they ll just manage you out the door, so maybe try re-negotiation your terms with the company, you need your time off. try not be too hard on yourself also, you ve a lot on your plate, the company knew exactly what they were at. best of luck

listermint

Isn't this what contracting is all about. You are most likely making more money than an off the shelf employee but with that comes other draw backs. It's why people get into contracting. Short term reward

Wanderer78

https://www.boards.ie/discussion/comment/118065310#Comment_118065310

its ultimately to benefit employers, as can be seen in this case....

listermint

https://www.boards.ie/discussion/comment/118065323#Comment_118065323

I disagree. It a contractor takes on a roll with a higher short term reward than an equivalent employee then they both know the score. The company needs to fill a short term need without the over head so pays more wages to cover what the market is asking in this case the market being the OP.

If they weren't happy with the compensation at the start then they shouldn't have taken it tbh.

Othe employees would have lower wages but some other benefits for that.

towger

https://www.revenue.ie/en/employing-people/becoming-an-employer-and-ongoing-obligations/guide-to-pay-as-you-earn-paye/determining-the-employment-status-of-an-individual.aspx

relax carry on

You know that you and your employer can't just decide if you are an employee or a self employed contractor? It's a question of a contract of or contract for employment. Have a read of the link below. Based on the facts of your present situation are you an employee or are you a self employed contractor? If the facts point to you being a self employed contractor then that's what you are and you should have priced the job accordingly to take into account the benefits you lose as an employee. If the facts point to you being an employee then this is the discussion you should be having with your employer.

https://www.revenue.ie/en/employing-people/becoming-an-employer-and-ongoing-obligations/guide-to-pay-as-you-earn-paye/determining-the-employment-status-of-an-individual.aspx

Darc19

Benefits both

Gives you the freedom to do "nixers" without fear of disciplinary action. Allows you optimise tax.

Company doesn't have to calculate holiday, pension etc and can end your contract fairly easily.

Usually contract positions are paid 15%+ more than those in direct employment.

Suits some people, doesn't suit others

listermint

Note I'm not talking about where companies like Ryanair off shore entire operation to other countries but have staff here.

The contracting roles like the OPs are different it's a mutual consent thing of their benefit. Often the view can change into it . So maybe the OP should apply for a role of there is one opening ? That can happen too.

zephyro

If you want to pursue it and potentially get re-classified as an employee (which it sounds like you are), the procedure is to contact the Scope Section at Department of Social Protection ... you'll find all the relevant details here:

https://www.citizensinformation.ie/en/employment/types_of_employment/understanding_your_employment_status.html

listermint

https://www.boards.ie/discussion/comment/118065353#Comment_118065353

Not sure how this works that's for cases where it's unclear. The OP signed up for a short term contracting roles. They are a few. Months into it... They signed up acknowledging the role.

A more appropriate action would be to ask is there permanent staff roles coming up or available now.

storker

@CurryFlavoured What does your contract say about holidays? I've been working as a contractor for a few years (for the same employer) and there was never any question of building up time or even asking for holidays. When I take time off I make sure it's OK with the section manager (for cover, ongoing projects, etc), but apart from that there's never been any question of building up days or counting days holiday taken because I don't get paid for days I don't work.

Also, were you asking just was it OK to not be at work for x days or were you looking to be not in work and paid for x days?

Pawwed Rig

Raise the issue with your employer and see what they say. If they want you they will take you on.

If not I would just move as there sounds like there is little benefit to you being a contractor.

zephyro

Not for cases where it's unclear at all @listermint ... it's for situations exactly like this where an employer hires a "contractor" but treats them like an employee.

Wanderer78

https://www.boards.ie/discussion/comment/118065336#Comment_118065336

yes, such employee/employer agreements can indeed benefit both entities greatly at times, but many a time, it truly only benefits one of them, and particularly the employer, as is the case here. some employers use their advantage of knowledge and understanding, compared to employees knowledge and understanding, or lack of, to truly only benefit them, again, as is the case here

https://www.boards.ie/discussion/comment/118065233#Comment_118065233

You say you are a third party contractor, is your contract with an agency? Also, are you responsible for your own tax returns?

You need to research fixed term contracts and note the differences between them and contracts of indefinite duration. If you are a self employed contractor working for a firm, then you might have most, but not all the entitlements of an employee. In particular, check your contract with both the agency/firm to see if it has something along the lines of “the Unfair Dismissals Act does not apply at the end of the term/task, merely that the term is determined”, effectively that means that if they don’t like/need you, they can just let you go and you do not have the benefit of the UDA.

Mrs OBumble

Are you submitting invoices each month to get paid? Do you have professional liability insurance?

If the answers are no, the agency takes care of that, the it's the agency you need to talk to about leave, because they are your employer

CurryFlavoured

https://www.boards.ie/discussion/comment/118065343#Comment_118065343

Thanks for all the responses (didn't expect this many!)

Think the above kinda hit the crux of my issue - it's not whether I want/don't want to negotiate my status as an employee/contractor, I feel that objectively I am an employee (based on those employment status criteria links) who has been wrongly labelled a 'contractor' for the benefit of the employer. Had I been an employee I'd have earned more money in annual leave (also overtime and potentially more travel allowance), but I do appreciate that I'm paid a little more as a contractor (how much, I don't know).

Also I should clarify that this was originally agreed as a short term temp role for 6-8 weeks which only extended longer because my move abroad was delayed, I will only be working for them for another month so renegotiating my contract isn't worthwhile, although I would do this if I was here longer.

It sounds like in practice this is a bit of a gray area that is used to suit the employer or worker, rather than fit the actual criteria for what employees/contractors are as set out by revenue. I'll chat to my manager about it but won't be pushing for anything based on what I've read here. It's also best to keep them onside given I'll likely need them for references, I would only have pursued something if this was a black and white case of my employer being in the wrong.