I was fired for telling ICO of Serco track and trace data breach, claims sacked worker A British coronavirus contact tracer who has said she was sacked from Serco for blowing the whistle on a data breach had part of her legal case thrown out because she was working for a mini umbrella company and not Serco itself, a judge has ruled. The woman, named by Bristol Employment Tribunal as Miss S Messi, also alleged …
The whole umbrella charade needs to be put to an end. It makes mockery of workers' rights for benefit of big corporations.
If you work for a company you should be directly employed, participating in the ranks, having a career development plan or supply services as a business. There is no place for umbrella in that equation.
"If she was working in IT then IR35 rules would insist that she was an employee of Serco and the umbrella was irrelevant"
IR35 is not specific to IT workers, and, as far as I'm aware, working through an umbrella company (being under a contract of service and PAYE employee of it) renders IR35 irrelevant.
IR35 is only relevant where a contractor claims to be not under a PAYE contract of service to the recipient of the service or an independent intermediary. What HMRC appears to disapprove of is the concept a limited company acting as the intermediary where its director provides the service personally, as opposed to employing other to provide it.
The original (and reasonable) argument about "deemed employment" based on similarity of duties and obligations to those of an employee has been expanded until that original concept has been lost in the mush that now encompasses almost any independent contracting on almost any basis. This is because the interpretation of status does not depend on any actual contract, but is decided exclusively by the recipient of the service and HMRC, both of which have vested interests. That's fundamentally what makes IR35 utterly unfair - it totally disempowers one party to the contract.
At the very least, there should be a "Key Facts Sheet" (similar to those for mortgages and the like) that states up front something along the lines of "You will be employed by <Little-Scumbag> who will provide you as a slave worker to <Big-Scumbag>" along with a list of the benefits, rights and so on that you will not get from <Big-Scumbag>.
Any "real" contractor will understand this, but that's not the case for a lot of people who are being forced down the agency/umbrella route without even knowing it's happening.
The mythical permatractor bankrupting the HMRC is a laughable concept when you see how much money tax payer loses through fake umbrella companies.
When permatractors will be forced on PAYE, the clients are still going to be charged 1-2k a month by big consultancy, but the difference is that big consultancy can afford more creative accountants and they also likely donate to the party.
Also after the tax changes in 2017, only thing HMRC can perceive as a loss is employer's NI, which I am not sure it should be paid when someone is not an employee. Either way this is a too small amount to justify destroying multiple sectors and small businesses.
I agree with the umbrella POV but not the direct employment bit, and it isn't all bad news - there is a reason people use umbrella companies, usually for short term gain.
I work for a large company and in the area I work in we have at the base level 2 people who work through an employment agency. This is to provide flexibility in the workforce, and in over 10 years I have only seen 1 person on that contract lose their job which was because they didn't give a damn. Extra support was put in, extra time spent with the the person and after 6 months we gave up and let them go then took on someone else from the same agency. On average they are with the agency for 12 months (max 2 years) before being offered a permanent contract with us as people move roles.
The agency gives people an option of 'working' directly for them or through an umbrella company. If they go via the umbrella company they get a load of tax breaks, some of which I think are legally dubious. These include a meal allowance every day of £5, tax relief on travel because they work at different locations - this ignores the fact they travel to the same start location every day and then use a company vehicle to travel to whichever sites they are working on.
Personally I think that umbrella companies should be banned as best case they screw the tax office or their employees. Worst case they screw both.
> usually for short term gain.
Short term gain of a company that does not want to increase the head count, as this looks bad for shareholders.
> This is to provide flexibility in the workforce,
This removes the worker from a company structure while giving an illusion of having any benefits of employment law.
> Extra support was put in, extra time spent with the the person and after 6 months we gave up and let them go then took on someone else from the same agency.
Company can hire and fire without giving a reason for the first two years. There is no need to have an umbrella for that.
> On average they are with the agency for 12 months (max 2 years) before being offered a permanent contract with us as people move roles.
So this is a way for a company to side step workers' protection offered by employment law after 2 years. That is probably illegal and if not, it should be.
> If they go via the umbrella company they get a load of tax breaks, some of which I think are legally dubious.
There is no tax advantage by going through an umbrella. If they say there is, then it is certainly some sort of illegal scheme.
> These include a meal allowance every day of £5, tax relief on travel because they work at different locations - this ignores the fact they travel to the same start location every day and then use a company vehicle to travel to whichever sites they are working on.
All these benefits are likely coming from the rates paid by the client and an employee would be better off if working directly, as there is no middleman that charges fees.
<quote>These include a meal allowance every day of £5, tax relief on travel because they work at different locations - this ignores the fact they travel to the same start location every day and then use a company vehicle to travel to whichever sites they are working on </quote>
HMRC guidelines say that you can claim travel to a different place of work for up to 2 years then it becomes your 'permanent workplace'. A contractor can use this as their normal workplace is where their business is set up i.e. home or possibly the umbrella address. The meal allowance would be something the umbrella set up as a working 'off site' subsistence payment - normally a contractor can claim this with a receipt...
So both of these are perfectly normal and allowed.
An umbrella is really just a temping agency for contractors - but temp agencies are also notorious for screwing employees so nothing new there
I worked for a firm I can't name for legal reasons who had their business made up of a miriad of small companies. These were how the business had grown, by acquiring and absorbing smaller firms. Nobody really paid much attention to the fact that there were around 100 companies registered at the head office address. That is until until we had proposed mass redundancies. Then it was announced in your redundancy meeting that as per your contract you were employed by one of these firms. That way despite the company getting rid of 150 staff in one go didn't have to give the longer 90 days consultation period just the 30 days.
Angry didn't cover the feelings of the staff when they found out.
I understand their anger, but having suffered through a number of IBM "resource actions" the reality is that the mandated consultation period is always a meaningless farce. They could have a consultation period of 1 year but there would be zero movement by management on the scale or scope of redundancies. Having to wait for only 30 days was probably a kindness, then they could get on with their lives after leaving the scumbag employers.
The consultation period was of course just the bare minimum and everybody knew it ultimately meant goodbye. The company had also altered the redundancy payment terms down to the statutory minimum about a year earlier. The thing was just as the 30 days was paid employment so would the 90 days. It's not like the company was that short of cash or sales. The CEO was in danger of losing his bonus through as not enough profit was being made.
Company directors have a legal duty under the Companies Act 2006 (“the Act”) not to file false information on Companies House. Knowingly or recklessly delivering information or making a statement to the Registrar of Companies that is misleading, false or deceptive is a criminal offence under s.1112 of the Act and can lead to imprisonment and/or a fine.
Although the article goes on to say that "Inadvertently filing inaccurate information is unlikely to breach s.1112 of the Act." I imagine forgetting to update your filings would be the same - especially in the panicked response to a pandemic.
They are taking the piss.
Although JackpotComics wasn't set up specifically to ripe the public off during covid having already existed the opportunity was seized. At the start to the pandemic its accounts state 0 employees and net assets of £355.
Make you wonder which minister they were mates with (friends and/or the other meaning).
The current director was, when she took over the firm, resident in The Phillipines.
>Saves on some paperwork I suppose.
Not really. It is not much more paperwork to register a new company than to set up a El Reg commentard account.
And it is best to avoid buying defunct companies because their debts might not be defunct.
Trust me, I know about these things, although I am not a company secretary like Adolf Tooth Fairy Hitler.
I didn't think anyone on Tong Street was intelligent enough to do this.
Fake addresses for offices on Tong Street, original incorporation at FTL (Farsley Transport Ltd) depot and current address on Tong Street is a Trampoline Park.
Looks like some students based on the move to Loughbrough.
Anon because I live a couple of miles from there.
Whole thing has a funny smell to it tbh....the company has one director residing in the Phillipines and the only other former director was a "consultant" who set up numerous other businesses with one director also residing in the Phillipines.
Could be wrong but the whole thing stinks of a rather underhanded scheme of potentially dubious legality.......
In the UK, whistleblowers are protected by the law, according to the UK government web site:
https://www.gov.uk/whistleblowing
"You’re a whistleblower if you’re a worker and you report certain types of wrongdoing. This will usually be something you’ve seen at work - though not always.
The wrongdoing you disclose must be in the public interest. This means it must affect others, for example the general public.
As a whistleblower you’re protected by law - you should not be treated unfairly or lose your job because you ‘blow the whistle’.
You can raise your concern at any time about an incident that happened in the past, is happening now, or you believe will happen in the near future."
Or have I missed something?
Indeed.
Matt Hancock resigned not because he had an affair and kissed his inamorata during serious lockdown (you don't leave your wife and three children for a woman you've only kissed once), but because he got caught. Sajid Javid, on the other hand resigned as chancellor on the point of principle that he wanted to appoint his own economic advisors rather than have them selected by Dominic Cummings.
Clearly Boris Johnson had no problem with Hancock breaking his own lockdown rules as he accepted Hancock's initial apology. I have to confess here that their current conduct is unlikely to win my vote for the Tories come the next election.
Hancock got off lightly - a slap on the wrist for "breaking COVID rules" by kissing someone. Apparently Cabinet Ministers acting immorally, e.g. by having affairs, isn't a concern. And it does mean that he won't be held to account for the COVID mismanagement.
Trebles all round!
> Sajid Javid, on the other hand resigned as chancellor on the point of principle that he wanted to appoint his own economic advisors rather than have them selected by Dominic Cummings
That rather suggests the IR35 project was indeed a stich up and eventually the benefactor had to become a chancellor.
Yes. It says "should not" and is a trivially worked around rule that doesn't provide any actual fine etc, rather than a short and simple bit of primary legislation that defines unfair treatment, and says "if treated unfairly as judged by the courts then the company treating the staff member unfairly will receive a fine of 100x the workers annual salary".
Which would pretty immediately end the problem.
As far as I can tell, the argument here is that she exposed wrongdoing by Serco, but she was actually employed by 'Jackpostcomics' and contracted to Serco.
So, when Jackpotcomics failed to renew her contract it was for 'completely unrelated' reasons, and not because she'd embarrassed Serco.
I'm guessing a good lawyer would be able to rip that to shreds, but I doubt she can afford said lawyer.
Regardless of the reason that Jackpotcomics fired her, it is they who need to be sued for wrongful dismissal, not their customer, Serco. Consider the case where the customers of a pub tell the landlord that they refuse to be served by a black person and will boycott the pub if that worker is present. As a result, the landlord fires the black employee. Should that employee sue the pub or its customers?
Make it illegal to set up hundreds of little sub contractor firms to do a tax dodge?
Make it explicitly legal to whistleblow on a big firm from a sub contractor (nested however deep)?
Finally enact the anti-fraud legislation that'll make tax havens open up about business ownership?
How far did you look?
"Or have I missed something?"
She didn't lose her job for whistle blowing. She had her employment terminated because she worked via another company (rather than directly for the company concerned) and the company concerned had no further need for her services. The fact that this happened at the same time as the whistle blowing thing is purely entirely coincidental and not in any way even slightly related, blah blah blah...
Exactly. And of course the rest of the work (and employees) could be moved to another MUC, and the contract with Jackpot comics terminated, at which point there's no possible chance of this having been anything to do with whistleblowing - there's just no more work. Honest.
I don't see a problem if that is just the name of the umbrella company she created/worked for... I thought umbrella companies were supposed to have their own unique name, and to paraphrase ISPs when I try to sign up with my real name, "that name has already been taken, please try 'realname (followed by a very large random number) at ISP.con" (oops Fraudian slip ;-) ) - which always struck me as weird because even in the days of AOL and Yahoo! I could only ever find 2 people with "my" name - me in the UK and one literally on the other side of the planet, Down Under...
Its a rabbit hole:
Jackpotcomics Ltd
Registered on companies house as: 51 Rothersthrope Road, Rothersthrope Trading Estate, Northampton, NN4 8JD
https://find-and-update.company-information.service.gov.uk/company/11963186/officers
However, this appears to be an intentional miss spelling, should be: Rothersthorpe and not Rothersthrope, check out the correct spelling, no 51 does not exists, the houses that side of the Rothersthorpe Rd only go to 49 there is no 51.
https://goo.gl/maps/Xoqo4hwMmUHmLiye8
Google the miss spelling of the company name and you find a lot of companies with the same address (a few without):
https://find-and-update.company-information.service.gov.uk/search?q=51+Rothersthorpe+Road%2C+Rothersthorpe+Trading+Estate%2C+Northampton%2C+NN4+8JD
And:
https://find-and-update.company-information.service.gov.uk/search?q=51+Rothersthrope+Road%2C+Rothersthrope+Trading+Estate%2C+Northampton%2C+NN4+8JD
I would suspect all the postal stuff ends up getting delivered to this address:
We Fix 'n E' Car - Car and Commercial Vehicle Repairs
Unit 51, Rothersthorpe Crescent, Northampton, Northamptonshire, NN4 8J
All the names for the registered companies appear to be generated, strange how many have a director thats country of residence is the Philippines...
All appear to have been registered march 2019 going forward current there appears to be possibly over 251,482 companies registered to the same address.
No that is not a coincidence.
The microumbrella concept is an abomination, and needs to be shutdown as soon as possible.
I would not say that it is Boris. I would expect that this is some enterprising but slightly dodgy accountant who saw the loophole, and sold it to some of the big consultancy companies as a way of getting out of the IR35 bind that HMRC created. I suspect that the actual setup of the companies is being done as a service for these large consultancies. It would be interesting if tracing back the people who registered and/or bought these dormant companies can identify what organization originated the idea, but I suspect that it is heavily obfuscated.
"This particular rabbit hole appears to lead to a whole city, sounds like a good time to set an investigative reporter on to that one."
As per the article, there are already investigative reporters looking into it. I heard about the Philippines connection to 10's of 1000's of UK umbrella companies each doing small scale agency work for the likes of Serco on BBC Radio 4 show at least a month ago.
She does appear to have been intent of gathering dirt on the company with which to harm them rather than simply exposing a rather minor case of DPR breach. (Using real data in a training session is not a particularly serious case of misusing private data after all). Exposing that breach did not need her to make secret recordings of private conversations between other employees.
I do not believe that it is unreasonable in principle to fire an employee who is quite obviously trying to find ways to cause harm to the company that employs them.
Unfortunately this lady appears to have made several schoolgirl errors in bringing her case which Im guessing will make it doomed to failure, albeit its not clear what elements of her case remain from quick skim of the judgement.
It looks like the initial judgement for "interim relief" was for a stay execution.
2 obvious errors :
1. She is confusing or attempting to conflate "worked for" with "employed by"
2. You never ever send 116 "stream of consciousness" emails to a tribunal, you make limited and deliberate updates of material evidence.
3. Those 116 mails suggest she is taking it personally. No matter how personal it is losing your objectivity is a recipe for disaster. By all means be angry - but dont let that stop you acting with a clear head with the tribunal.
I dont hold out much hope for her no matter how justified or not her case might be.
She might be better off researching her agency employer who is using the mini-umbrella's and dobbing them into HMRC. She may not get much satisfaction from that route either but it would have been worth a punt at less cost and effort to her.
Shame Companies House doesn't do audits of their data and look up potentially fraudulent locations and then remove their registrations.
Google wont let you register unless you get a postcard to the address you registered with a code. Maybe if HMRC did that the number of blatantly fraudulent businesses will drop. At least it would force them to put some sort of effort into this.
This is just yet another farce for the government. Much like when Boris's bit on the side was using a faked address with a receptionist in California answering the phone. Earned her a nice 150k grant from the gov. Bet that was never paid back either. Not sure that 150k makes it worth sucking off Boris but i guess some people have low standards.
The sole director of Jackpotcomics Ltd is listed as being resident in the Philippines.
https://find-and-update.company-information.service.gov.uk/company/11963186/officers
The referenced BBC investigation uncovered how tens of thousands of companies were set up, recruiting people in the Philippines to be registered as their directors. I assume they did this because when HMRC realise the arrangement is dodgy, the directors are out of their reach.
I'm sure there are legitimate UK companies with Filipino directors, but this looks very much like the tax dodge identified by the BBC.
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