You & Your Family
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Your legal employment status can significantly affect the employment rights that you have. It is therefore of vital importance to ensure that you are engaged with your employer in the correct manner.
There are three main categories of employment status, and employees will need to ensure that they are aware of the remit, and implications, of their status. Our expert solicitors can guide, and advise, you on the same, and help you to determine which is suited to your particular circumstances.
The three main categories of employment status are as follows:
- Employee – Employees will be personally undertaking work for the employer, and without the right to provide a substituted individual for their services. In order to determine whether an individual is an employee, the relationship (between employee and employer) will need to be examined, for example, in terms of the following (but which shall not be limited to):
- How you are renumerated
- The exercisable control by your employer over you
- How holiday periods are granted
- Where there is a uniform and/or tools required, who provides the same.
- Worker – Workers will, generally, give personal performance under the employment contract, however may be able to substitute another individual to undertake their services. Workers tend to include those performing casual or agency work and freelancers, as well as those on zero hours contracts.
- Self-employed – Self-employed individuals generally enter into contracts with employers to provide a service for a client for a set fee, effectively running their own business. They do not get paid through PAYE and, ordinarily, do not have the right to holiday pay. They do not have the same responsibilities and rights as other employees and/or workers (as the contract for services should provide for the same), however are provided with protection under health and safety legislation.
The distinction between the aforementioned three statuses of employment is important as each category of status is afforded different protections to the others (generally speaking employees have greater rights than a worker or someone who is self-employed).
Employees must therefore be in a position to prove their status, if necessary, as this can affect the rights you are entitled. For example, the fact that you are considered to be self-employed for tax purposes would not necessarily mean that any employment tribunal would determine the same status.
If my contract says that I am self-employed, is this then the case?
In short, not necessarily. When determining an individual’s status, tribunals may disregard terms included in a written agreement where they do not reflect the genuine agreement of the parties. This does not mean that the written terms are irrelevant in every case. Rather, where the true intent of the parties is in dispute, it means that it is necessary to consider all of the circumstances of the case (which may provide clarity as to whether the documented terms truly reflect the agreement between the parties).
The above was confirmed in the recent, highly profiled, case of Uber BV and others v Aslam and others [2021] UKSC 5O, whereby it was held in judgment that worker status was a question of statutory interpretation rather than contractual interpretation, and that the written documentation between Uber and the drivers, while not irrelevant, was not the correct starting point.
