Can a council co-opt one of its employees?

Question

My local parish council has just co-opted its own lengthsman, which I was surprised at, as I thought employees could not be councillors on the council they work for.
The clerk says all is proper though, because the lengthsman is not on a ‘permanent’ contract.
What does everyone think?

(For your information: the lengthsman was selected from a group of applicants a year ago, and appointed to the post.  He receives the same sum each month, working to a task-list provided by the council.  He is not on PAYE, but sorts his own tax and NI.)

Answer 1

This sounds like a dogs breakfast.

You refer to the lengths man as an employee yet he "is not on PAYE and sorts out his own tax and NI".

If he is an employee then he cannot serve as a councillor.
If he was "selected from a group of applicants A YEAR AGO he can hardly be described as 'not on a permanent contract'.

If he is an employee then his employer (the council) is obliged to deduct tax and NI.

Oh dear!

Answer 2

It sounds like your Clerk is taking the view that the lengthsman is effectively a self employed contractor who provides a paid service to the council rather than being a normal employee.  But the rules say you cannot be a candidate if at the time of your nomination and on polling day if  you are employed by the parish/community council or hold a paid office under the parish council.

So in my view the lengthsman cannot be legally co opted  - unless he resigned his paid office at exactly the same time as the co option was approved by the Council, or unless the Council terminated his paid service immedialtely prior to co option.

Answer 3

The test of whether somebody is an employee or contractor considers factors such as who determines the hours worked, who provides the tools for the job, whether the individual may delegate or sub-contract the work, whether the individual may decide to accept or reject specific tasks, whether the individual is paid even if they do not provide a service in a particular period, whether the rate of pay is set by the employer or by the individual, whether the contract is fixed-term or open-ended etc. If more than one of these factors suggests a direct master-servant relationship, it is likely that the person is an employee. From the information you have provided, it seems clear that your lengthsman is an employee. Suggest to your Clerk that they refer to the relevant sections of the ACAS website for clarification.

There are still far too many unscrupulous employers using the old "He's not an employee, he pays his own tax" line to avoid providing sick pay, holiday pay and all the other employee benefits. Employment tribunals take a very dim view of such behaviour.