T&C for contractors
Written on 10/08/2018

The days when working relationships were that of ‘master and servant’ have all but disappeared, and businesses now find themselves in an ever-evolving minefield of working arrangements. 

Employers frequently try to set up working relationships, so that their staff are classified as self-employed, rather than as employees. This is because employees are afforded significantly more rights and entitlements than self-employed individuals, plus no national insurance will have to be paid by the business. 

Unfortunately for these ‘wily’ employers, employment tribunals do not fall for this, and instead look beyond the superficial set up of the working relationship. This was a tough lesson learned by both Uber and Pimlico Plumbers in the last few months. Both of these employers engaged workers on the basis of being self-employed, but, in reality, they were treated like employees on a day-to-day basis. The only difference was that the workers didn’t have the benefit of the additional rights and entitlements enjoyed by an employee. Both companies lost when taken to court.

Cases such as this invite the question: how can businesses ensure that the self-employed are actually self-employed? And one firm asked last week when does an employee who is subject to T&C become a “self employed contractor” when they are not subject to your T&C scheme.

However for IFAs and client facing staff the answer is unequivocal. The IFAC T&C manual states

"… following plan applies to all advisers, whether they are undertaking investment, mortgage 

or non-investment insurance business or a combination of the three." 

So they must be fully signed up to the T&C scheme. They are subject to the 35 hours minimum CPD of which 21 must be structured. FCA professional standards.

For staff in the GI insurance world – including all IFA firms who do insurance – the latest directive from the EEA is the IDD. This puts the requirement of 15 hours CPD (structured or unstructured) onto all staff. So far so good. 

T&C for part time staff

Sadly there is no definitive black and white guidance on CPD for self employed contractors who are NOT client facing in the new January 18 IDD rules.

As always, each case will turn on its facts, and in the absence of anything definitive, businesses will just have to follow the guidance of above and treat all as fully employed. You would, however, be well-advised not to class workers as ‘self-employed’ simply to avoid your liabilities.

So here is a question: what definitive items do you need to cover (ie training or testing) with an employed clerk annually?

  1. Fit and proper
  2. AML training 
  3. Complaints
  4. Financial Crime
  5. Data Protection 
  6. Public Interest Disclosure Act
  7. All of the above.

No prizes for the right answer….set out below.

The correct answer is 7) – all these items need to be on the agenda during 121s with non advising clerks in a financial services practice today.

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