What makes an employee
Employee or worker or self-employed?
When someone provides “services” to a business they generally fall into one of three categories; employee, worker or self-employed.
It is not always easy to decide which category someone falls into. The law doesn’t always help for example it doesn’t define terms such as casual worker or zero hours contract. The wording of a contract may help but if it doesn’t reflect the real situation it won’t dictate what that relationship. So in practice when a court or tribunal has to decide on a person’s status they do it by looking at all the evidence to find the reality of the situation. Even then it is possible HMRC, looking at if from the tax side and an Employment Tribunal looking at it from the employment right side, will reach different conclusions about an persons status.
What is an employee?
There are some essential elements that must be satisfied for you to be an employee:
- There must be a contract of employment (even if it’s not written down).
- The “employee” must be obliged to do work.
- The “employee” is obliged to do the work personally (not send someone else).
- The “employer” must be obliged to provide work.
- The “employer” must have control over what the “employee” does<
Why employment status matters
An employee has a lot of rights given to them by law which they can’t agree to give away. Entitlements only employees have include
- The right not to be unfairly dismissed.
- Redundancy rights.
- Maternity, paternity and adoption leave rights.
- Right to flexible working.
- Minimum notice
Even if someon isn’t an ee they may still be a “worker”. Defining a worker is even harder than defining an employee.
Generally someone is a worker but not an employee if they
- provide services personally and
- aren’t providing the services to a customer or client.
- can’t require the “employer” to provide work
- has no obligation to accept work if it is offered.
Typically many casual or, freelance individuals such as joiners or bricklayers on building sites, will be workers. The Uber drivers case is a typical modern instance of individuals being workers; not self-employed or employees.
Why it matters
It matters whether someone is an employee or worker. Workers have some legal rights but fewer than employees. However they still have more rights than the self-employed. Some of the rights workers get and can’t agree to give away include
- National minimum wage.
- Health & Safety rights.
- Breaks and rest periods.
- Paid annual leave.
- Whistle blowing protection.
Only if you are someone is not an employee or worker are they truly self-employed. Generally this means they are running their own independent business with customers or clients.
When are rights acquired
Once you know correct status you can look at the rights which apply to that status. However not all the rights apply immediately. Some rights always exists. Other rights arise when the relationship is created. Again you only get some rights after a specific period of employment. Here are some examples of when employee or worker rights are acquired
- there must never be discrimination; e.g. even when advertising a job or recruiting.
- right from the begining of a job employees and workers have the right to the national minimum wage and paid holidays
- after two years of employment emloyees get protection from most unfair dismissal and the right redundancy pay.
To learn more contact us
Kirsten Moon – Employment Client Partner
This is a brief note only intended to generally inform and should not be considered an exhaustive guide on the subject. Further advice should be sought before taking or reframing from taking any steps. © Moon & Co Solicitors.