Employment Status

A person’s employment rights and their employer’s responsibilities are determined by a person’s employment status. A person’s employment status is mainly either:

1. A worker;
2. An employee; or
3. A self-employed independent contractor.

Of the 3 main categories of employment status, employees enjoy the full range of employment rights. Workers have less employment rights than those of employees. Self-employed independent contractors have no employment rights but are protected against discrimination.

A person is a worker if they enter into a contract to personally perform work or services to the other party to the contract who is not by virtue of the contract, is not a client or customer of a profession or business undertaken by the putative worker. In order to be classified as a worker, there is no requirement to work a specified or minimum number of hours weekly or work at specified times. As a result, a worker may possess great flexibility in determining their number of hours or times at which work or service is performed.

Workers enjoy a restricted range of employment rights than those enjoyed by employees. A Worker's employment rights include the right to:

1. Payment of at least the national minimum wage;
2. A minumum amount of days paid annual leave;
3. Protection against less favourable treatment as a part-time worker;
4. Maximum working time of 48 hours weekly or to opt out of the right to maximum working time; and
5. Protection against discrimination.

A person is an employee if they are employed under a contract of employment. A person is an employee if engaged in a type of contract applicable to workers, with the added requirement that an irreducible mutuality of obligations exist between the putative employee and employer. Mutual obligations may exist between the parties where, for example, a putative employee is contractually required to work a minimum number of hours weekly and the putative employer is contractually obligated to provide the employee with work or remuneration.

The question of whether a contract of employment exists between parties is determinable by courts and employment tribunal in accordance with legal principles established in case law.

An employee's employment rights include those bestowed upon workers. However, employees have additional employment rights including the right to:

1. Protection from unfair dismissal, subject to a qualifying period of 2 years of service in some instances depending on the nature of the complaint giving rise to a claim for unfair dismissal;
2. Redundancy pay, subject to a qualifying period of 2 years of service;
3. Sick pay;
4. Minimum notice period of the termination of employment or payment in lieu of notice, subject to a qualifying period of 1 month of service;
5. Request flexible working; and
6. Maternity, paternity and shared parental paid leave.

A self-employed person is engaged in a contract for work or services where, by virtue of the contract, the other party to the contract is the client or customer of a business or profession undertaken by the self-employed person.

Self-employed persons have no employment rights besides the right to protection against discrimination.

A court or employment tribunal has jurisdiction to make the final determination of a person’s employment status. The categorisation of a person’s employment status as described by parties to a contract is not determinative of a persons’ true employment status in law.

Where a person’s employment status is misclassified, whether intentionally or otherwise, the position can only be corrected by a court or employment tribunal if a legal claim is filed by or on behalf of the person whose employment status is misclassified or subject to dispute.

A person seeking to determine their employment status may typically obtain legal advice and assistance in doing so from a solicitor, Law Centre, or trade union.