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Employment Law Solicitor
Sarah Cruice 0114 253 6547 | email Sarah View Sarah's profile |
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An individual’s ability to assert certain statutory rights (and therefore bring employment tribunal claims) is dependent upon their employment status. Many employment protection rights apply only to ‘employees’. Certain employment protection rights apply to ‘workers’, and very few apply to the self employed and ‘office holders’. |
Examples of rights afforded only to employees:
- The right not to be unfairly dismissed
- The right not to be discriminated against on any of the protected grounds (see note on discrimination)
- The right to a statutory redundancy payment
- Protection against unlawful deduction from wages
- Protection when employment transfers from one employer to another
- The right to be provided with written particulars of employment
- The right to itemised pay statements
- The right to statutory sick pay
- The right to paid holiday
Examples of rights afforded to employees and workers:
- The right not to be discriminated against on any of the protected grounds (see note on discrimination).
- Protection against unlawful deduction from wages
- The right to statutory sick pay
- The right to paid holiday
Examples of rights afforded to the self employed / office holders:
- The right not to be discriminated against on any of the protected grounds (see note on discrimination).
How do you know if you are an employee?
It is often obvious whether a particular contract is a contract of employment (i.e. a contract of service between an employer and an employee) or a contract for services (i.e. made by an employer with an independent contractor/self-employed person). However, grey areas do arise and it is not always clear whether a person is or is not technically an employee - even where the relationship is governed by a written document.
Where there is disagreement about employment status, the tribunal might be asked to make a determination on it. One of the most common examples of when this might happen is where somebody brings an unfair dismissal claim in the tribunal and their opponent argues that the tribunal cannot hear the complaint because the complainant is not an employee. Establishing employment status can often be difficult, and a number of factors will need to be taken into consideration before a view can be formed.
Employment legislation defines an employee as somebody who is engaged under a ‘contract of service’.
Contracts can be made in writing, orally or impliedly, for example, if an individual carried out work for another party and was paid for this, there would be an implied contract for the individual to perform those tasks he had historically performed and to be paid what he had historically been paid.
If there is a written contract, the tribunal will consider whether the parties intended that it should contain all of the terms of the engagement. If so, the tribunal will only look at those written terms. If not, the tribunal will look at other exchanges (including oral evidence and conduct), to assist when deciding whether there is a contract of service.
For a contract to be a contract of service, the following three requirements must be made out by the complainant as an absolute minimum:
- That the contract imposes an obligation on the employer to provide work and on the worker must be paid in return;
- That the contract imposes an obligation on the worker to provide at least some of the work personally;
- That the worker has agreed, either expressly or by implication, to be the subject of control of the person for whom he works to a sufficient degree.
If one or more of the requirements are missing, the contract will not be a contract of service and the complainant cannot be an employee.
Even if all three of the above basic criteria are satsified, it is still possible that the worker concerned is not an employee for employment law purposes. Other factors must be considered, none of which may be essential in any particular case but which will together allow a "picture to be painted" from which the question can ultimately be decided. Case law suggests that the following factors (NB not an exhaustive list) may also be indicative of status:
- Degree of integration into the business
- Ability to undertake other activities
- Nature and length of the engagement
- Tax status and benefits provided; and
- How the parties describe the relationship
It must be remembered that even if a person is an "employee" they will only enjoy many of the statutory rights of "employees" if they have completed a minimum period of continuous employment (for example, 12 months without a break in many types of unfair dismissal claims, although there are exceptions to this in certain circumstances). So if an individual works only when called on, for example as a "pool" nurse working for a hospital, they may be an employee while working but might not be able to claim continuous employment for a full year and thus might not be able to claim unfair dismissal.
Worker status
An individual who does not satisfy the criteria to be able to show employee status is likely to be considered a ‘worker’ for employment law purposes. A worker is defined more widely than an employee as an individual who has entered into works under a contract (either in writing, verbally or impliedly) whereby the individual agrees to personally work or provide services for the other party to the contract where that party is not a client or customer of the individual’s own profession or business. So, a sole trader providing services to a customer of his business will not be a worker for employment purposes. However, an individual who is not in business of their own account is likely to be a worker.
If you are an employer and would like further information on this issue, for example if you are unsure of the employment status of any of your staff, or are unclear of their rights and / or your obligations towards them, please contact Sarah Cruice on 0114 253 6547 or at sarah.cruice@ironmongercurtis.com for assistance.
If you are an employee and query whether you are being treated in accordance with your true employment status, or if you feel that you have been unfairly treated and do not know whether you are entitled to bring a claim, please contact us on 0114 253 6559 and we will be happy to discuss your situation with you.
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