Determining Employment Status

There are a number of employment statuses and the relationship between employer and employed person may be difficult to determine. Ultimately it is the Employment Tribunal which will determine the actual relationship. This article explores some of the possible relationships.
 

Self-employed

 
Self-employed workers tend to supply their own equipment and often work for more than one client.  They determine what work they will do and when they will do it. They may employ their own staff to carry out work on their behalf. They are responsible for HMRC obligations and will likely have a contract for service and will submit invoices.
 

Employee

 
An employee is a person who is employed under a contract of employment.  An employee will have the full range of employment rights.  This will include minimum wage, statutory holiday entitlement, are governed by the Working Time Directive and are protected from whistle-blowing and discrimination.
 

Workers

 
A worker has a contract for services. This is different from a contract of employment. The contract for services may state that the work can be done by an alternative person than the worker. This means that they are not an employee, who would have to do the work personally. The worker will have a range of employment rights but do not have protection from unfair dismissal.
 
The distinction between an employee and a worker is often blurred but there are three key elements to look out for to determine if a person is an employee or worker.
 
1) Is the employee under an obligation to perform the work personally?
2) Is there a mutuality of obligation between the parties involved?
3) Does the employer have a substantial right of control over the employee? 
 
Tribunals will also look at the intentions of both parties at the outset to determine the status of the staff member.  
 

Agency workers

 
Agency workers are employed by an employment agency or an employment business. They are entitled to the same basic working and employment conditions as a full time employee working for the same hirer once they have completed 12 consecutive weeks of work. It is the responsibility of the agency to administer employment matters such as annual leave and sick leave. The contract will be between the worker and the agency.
 

Zero Hour Contracts

 
This type of contract is a worker contract where the hours vary every week and hence the contract is formed on zero hours and hours to be agreed on an as and when basis. This type of contract limits the obligations of employers and rights of employees. Whilst this type of contract may not appear advantageous to the worker, some find the flexibility of the contract suits them.
 
AMD Solicitors’ solicitors in Bristol are very experienced at dealing with all the challenges facing employers and employees and will work with you to find the best solution for you. For more information on any employment issues, contact solicitors Christopher Brown and Liz Highams by calling their office on 0117 9235562 or email them at christopherbrown@amdsolicitors.com or lizhighams@amdsolicitors.com.

This article is provided for general information purposes only and represents our understanding of the relevant law and practice as at the date of uploading. This article should not be relied upon as legal advice pertaining to any specific factual situation. Legal decisions should be made only after proper consultation with a legal professional of your choosing.

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