Employment Status: Am I an employee, a worker or self-employed?
Updated: Jul 2, 2020
UK employment law is constantly changing and increasingly complex. It is vital that all employers and those operating within the HR function of a business, at whatever level, have a proper working knowledge of employment law if the business is not to be exposed to unnecessary risk of tribunal claims.
What is Employment Law?
Employment law is one of the most dynamic and interesting areas of the law.
Complex area that is full of pitfalls.
Getting it right means keeping in touch with developments, thinking out your policies and implementing them with care.
Getting it wrong is easier but could be extremely expensive.
Definition of Employment law:
The law that governs the relationship between the employer and the employee in the workplace.
Also covers the relationship between the employer and the Trade unions and the relationship between the Trade unions and employees.
Employment law covers a huge range of topics e.g. Pay, working hours, sickness and holidays, redundancy, equal pay and discrimination, unfair dismissals and discrimination etc.
'Worker', 'Employee' or 'Self-employed'?
1. There are three main types of employment status:
2. Why employment status is important
Why is an individual’s employment status important?
An individual’s employment status will help define what rights and responsibilities the individual has at work – i.e. how many additional statutory rights he enjoys over and above those in the contract and the tax treatment of his earnings.
A person's employment status will depend on whether their contract is a contract of employment (employee), a contract for the personal performance of work (worker) or a contract for services (self-employed).
An employee enjoys several employment rights. A true independent contractor will enjoy very few statutory rights. A worker who may not be an employee but something in between that and an independent contractor will enjoy some but not all employment rights. Agency workers will also enjoy lesser rights.
The tax treatment of earnings also varies according to status. Traditional employees that are taxable under Schedule E, are subject to PAYE provisions. Workers and individual contractors are more likely to be taxable under Schedule D and it is only in exceptional circumstances that tax will be deducted at source. Finally, whether an employer can be held vicariously liable for the act of its employees will also require a determination of the employee’s status.
An employee is someone who works for you under the terms of an employment contract. A contract of employment could be written, oral or implied.
The category of worker is wider and includes any person who works for you, whether under a contract of employment or other type of contract but is not self-employed. This category can include casual workers, agency workers or some freelance workers but the terms of the contract will determine their employment status.
All employees are entitled to employment protection rights - though some rights require a minimum period of continuous service.
A number of core rights, such as the national minimum wage and regulations on working time, including rest and paid annual leave, are also available to the wider category who qualify as workers.
3. What is an employee?
You are classed as an employee if you are working under a contract of employment (also known as a contract of service). This is normally a written contract but need not be in writing as it exists when you and your employer agree terms and conditions of employment.
It can also be implied from your actions and those of the person you are working for.
Your contract will normally set out what you are expected to do and you will usually be expected to do the work yourself. Put simply, you cannot send someone else to do your work for you.
All employees are workers, but as an employee you have a wider range of employment rights and responsibilities to and from your employer. For example, you will need to give a minimum notice period if you wish to leave your job.
As an employee, your rights include all of the rights workers have, plus the right to:
a minimum statement of employment terms;
Statutory Sick Pay;
minimum notice periods if your employment will be ending (eg if your employer is dismissing you);
not be unfairly dismissed; and
maternity, paternity and adoption leave and pay.
Features of an employee relationship:
you have the right to a minimum statement of employment terms;
you are required to attend work on a regular basis unless you are on authorised leave (e.g. holiday, sickness absence, maternity leave);
you are required to work a minimum number of hours (whether fixed or variable) and you expect to get paid for the hours you work;
your manager or supervisor is responsible for your workload, directing when particular work should be completed and the way it should be undertaken (senior managers can still be employees even if you set your own objectives and organise your own time);
you cannot send a substitute to do your job;
the company deducts tax and National Insurance from your wages;
you have received (or would be entitled to) contractual or Statutory Sick Pay from the company when unable to work through illness or injury;
you have received (or would be entitled to) contractual or Statutory Maternity, adoption or Paternity Pay from the company when on maternity or paternity leave (also known as a contract of service);
you can request flexible working;
you are entitled to minimum notice periods if your employer is dismissing you;
you receive payment from the organisation when taking holiday;
you can join the organisations’ pension scheme;
you are included in the organisations’ organisational chart;
you are subject to the organisations’ disciplinary and grievance procedures;
you have the right not to be unfairly dismissed;
you work at the organisations’ premises or at a location specified by the organisation;
the organisation provides the tools and equipment that you need to do your job;
your contract sets out redundancy provisions and procedures;
you work exclusively for the organisation or you have another job, but it is entirely different from your work for the organisation; and
you have a contract, statement of terms and conditions, or an offer letter which uses terms such as 'employer' and 'employee' and/or is described as an 'employment contract'.
4. What is a worker?
This is a broader category than 'employee' but normally excludes those who are self-employed. The status of worker includes individuals working under a variety of contracts - whether under a contract of employment, or any other contract where an individual undertakes to do or perform personally any work or service.
Employees are workers, but employees have different employment rights and responsibilities than workers.
Workers are entitled to core employment rights and protections.
Providing any other qualifying conditions are met, all workers are entitled to core employment rights and protections:
the National Minimum Wage;
rest breaks, paid holiday and not work more than 48 hours on average per week and limits on night work under the Working Time Regulations;
protection against unauthorised deductions from pay;
maternity, paternity and adoption pay (but not leave);
protection against less favourable treatment because of being part-time;
Statutory Sick Pay;
protection against unlawful discrimination (including less favourable treatment on the grounds of part-time status
protection if you make a disclosure in the public interest (often called ‘whistleblowing’ - reporting wrongdoing in the workplace);
The key requirements for establishing 'worker' status are that you:
have to perform work or services personally and cannot send a substitute or sub-contract the work; and
are not undertaking the work as part of your own business (eg if the 'employer' is actually one of your clients).
The following groups of people are likely to be workers but not employees:
most agency workers;
short-term casual workers; and
Working out your employment status: Casual or irregular work
If you agree with most of the statements below, then it is likely that you are a worker.
You occasionally undertake work for a particular company or business.
The company has no obligation to offer you work and you do not have to accept it - you only accept work when you are able to or willing to.
If you do accept work, your contract describes the relationship as 'casual', 'freelance', 'zero hours', 'as required' or similar.
You had to sign the company's standard terms and conditions in order to get the work.
Whilst at work, you are under the supervision or control of a manager or director.
You are expected to perform the work yourself.
The organisation deducts tax and National Insurance contributions from your wages.
The organisation provides any tools, equipment or materials that you need to undertake your work.
Working out your employment status: Agency workers or ‘temps’
If you agree with most of the statements below, there is a strong likelihood that you are a worker.
You undertake work for a business (or multiple businesses) through a recruitment agency (also known as an 'employment business').
Your contract with the recruitment agency states that you are not their employee.
Your contract with the recruitment agency does not guarantee that they will find you work.
You can decide whether or not to accept or refuse work.
The employment agency pays your wages and deducts tax and National Insurance.
The employment agency pays you when you are on holiday or pays you in lieu of accrued holiday at the end of your contract.
You can leave the employment agency or a particular assignment giving little or no notice.
The hirer (e.g. the end user business you work for) can terminate an assignment giving little or no notice.
You have signed on the books of several employment agencies.
You work on a variety of assignments through the year for different companies
The lack of day-to-day control by the agency whilst you are on assignment usually prevents you from being their employee. Equally, you are not an employee of the business you work for because there is no obligation to offer or accept work.
As an agency worker, there are special requirements for the recruitment agency to deduct tax and National Insurance from your wages. This, in itself, does not mean that you are an employee.
Agency workers could be offered an employment contract by a recruitment agency and would therefore become the agency's employee.
5. What is being self-employed?
If you are self-employed, you do not have a contract of employment with an employer. You are more likely to be contracted to provide services over a certain period of time for a fee and be in business in your own right.
You will also pay your own Income Tax and National Insurance Contributions.
You do not have employment rights as such if you're self-employed since you are your own boss and can therefore decide, for example, how much to charge for your work and how much holiday to give yourself.
You do have some legal protection, however. You must not be discriminated against and you are entitled to a safe and healthy working environment on your client's premises for example.
Features of self- employment status: Independent contractors or consultants:
You bid or provide quotes to secure work.
You have specific targets or projects to complete, although you decide when and how to do the work.
You are not under direct supervision when you are working.
You do not have to perform the work personally - you can hire someone else to do the work or engage helpers at your own expense.
You submit invoices for work you have completed.
You are responsible for paying your own tax and National Insurance.
You do not receive any holiday pay or sick pay when you are unavailable for work.
You provide major items of tools, equipment or materials that are a fundamental requirement to complete a job.
you have to correct unsatisfactory work in your own time and at your own expense.
you are responsible for meeting any losses, as well as taking the profits from your work.
You provide your services, or could provide your services, to a number of different clients or customers.
You operate under a contract (maybe called a 'contract for services' or a 'consultancy agreement') which describes you as 'self-employed', a 'consultant' or an 'independent contractor'.
What approach do the courts take to determine an individual’s employment status?
There is no one thing that completely determines a person’s employment status. The courts will look at the whole picture and no one item is conclusive evidence either way.
Recent trends have been towards the application of a 'composite test' (the multi-factorial test) which takes account of all relevant factors. Remember that this is for guidance only and a definitive answer can only be given by an Employment Tribunal or court. There is no checklist of factors and the significance of each factor varies from case to case. If you are unsure of the employment status of someone who works for you or have concerns, you should seek advice.
Factors which are influential include:
Control: the extent to which the employer decides what tasks you do and how you do them
do you have the final say in how the business is run?
can you choose whether to do the work yourself, or send someone else?
can you choose when and how you will work?
Integration: the extent to which you are part of the organisation
if you need assistance, are you responsible for hiring other people and setting their terms of employment?
are you excluded from internal company matters such as corporate training and staff meetings?
are you exempt from having action taken against you using the organisations’ disciplinary procedure?
are you excluded from the organisations’ benefits and pension schemes?
Mutuality of obligation: this means both the employer and the employee must be under legal obligations to one another, usually the obligation on the employee to work and the on the employer to pay for that work. (This is usually relevant in the case of work which is part-time, casual or atypical.)
when it is available?
can you decide when you will work, and can you turn down work when offered?
Substitution: whether someone else can be sent by the worker to do the work. The individual must be obliged to provide the services himself. Freedom to do a job by his own hands or to subcontract work is inconsistent with an employment contract.
Economic reality: the extent to which you bear the financial risk i.e. whether you are in business on your own account, e.g. where you bear the financial risks of failure to deliver the service or can profit from your own sound management of the task.
are you responsible for meeting the losses as well as taking the profits?
are you responsible for correcting unsatisfactory work at your own expense?
do you have to submit an invoice to the company for your pay?
do you get a fixed payment for a job (including materials and labour)?
do you provide the main items of equipment needed to do the job?
do you work for a range of different employers?
The lack of day-to-day control by the agency whilst you are on assignment usually prevents an agency worker from being their employee. Equally, the worker is not an employee of the business they work for because there is no obligation to offer or accept work.
Agency workers could be offered an employment contract by a recruitment agency and would therefore become the agency's employee.
Factors which are inconsistent with the existence of a contract of employment include:
·The individual is not obliged to work for the employer even if the employer so requests.
The individual owns his own tools.
The individual hires his own helpers.
The individual may substitute someone else to do a particular task commissioned by the employer.
The individual has responsibility for investment and management.
The individual works for a number of other employers.
The fact that the arrangement is not intended to be that of employer and employee including the fact that the individual charges VAT for his services and receives no benefits such as pension and / or health insurance which employees of that employer do receive.