Employment status

In the UK, your legal rights in the workplace depend on whether you are classed as an ‘employee’, ‘self-employed’ or a ‘worker’.

What sort of worker are you?

This is your 'employment status'. It may be crucial in terms of what options are open to you when dealing with issues at work. Many important rights depend on you being an employee, such as being able to claim maternity leave or unfair dismissal. For other rights, such as the right to be paid the National Minimum Wage, you must be a worker.

Employee, worker or self-employed?

There are a number of tests to determine your employment status. The main statutory test ('statutory' = required by statutes, which are Acts of Parliament or regulations) is found in the Employment Rights Act 1996. This deems an 'employee' to be anyone who works under a contract of employment, whether or not that contract exists in writing.

A 'worker' is anyone else with a contract to carry out work personally for the other party involved in the contract – as long as the other party is not a 'client or customer of any profession or business undertaking carried on by the individual'.

So, employees also come under the heading of 'workers'. All employees are workers, but not all workers are employees. The crucial issue in whether you may be classed as an employee is whether you have a contract of employment, whether verbal or in writing.

If you have no contract, but there is still a legal obligation for you to carry out work personally, then you are a worker. In practice, the term 'worker' is often used to cover anyone who is not an employee.

There is an exception to this rule. If you are in business on your own account, providing goods or services to your own customers or clients in a genuinely arms-length relationship, then you are 'self-employed'.

The process of determining your employment status is not always straightforward. The borders between each of the categories – worker, employee and self-employed – are sometimes blurred. Employment status is decided by courts and tribunals case-by-case.

You may end up needing a legal opinion on which category you fall into. A good starting point is the invaluable reference book 'Law at Work: The trade union guide to employment law'. This is published by the Labour Research Department and updated annually.

More information on employment types:

Contracts

The job advice app, Worksmart, which is backed by the TUC, defines a contract as 'a legally enforceable agreement between an employer and an employee. It can impose duties on both the employer and the employee. They are normally (but not always) written down and given to the employee before or when you start work.

The courts will rule that a contract exists between you and your employer if you have agreed to perform a task in return for payment. Some terms of a contract of employment may not be written down, but are 'implied' by law or by 'custom and practice' in your workplace.

For example, the employer's duty to provide a safe, secure and healthy environment is implied by law in all contracts of employment.'

So, do you have one? This is a simple question, but the answer may be far from straightforward. If the issue ends up before an employment tribunal, it will look at your circumstances in relation to three factors:

'Mutuality of obligation'

This is simply a legal obligation on someone to carry out some work in return for payment, usually money. Without mutuality of obligation, there can be no contract – either as an employee or a worker. This explains why volunteers cannot be employees or workers. Additionally, interns who are genuine volunteers cannot be classed as workers or employees. The NUJ has produced its own guidelines for anyone on work experience.

You may have a contractual right to refuse work, or to choose to withhold work. This does not mean there is no mutuality of obligation, provided there is some obligation for you to work, and some obligation for the other party to provide that work, or pay for it. Furthermore, mutuality of obligation may still exist even if your contract says you are obliged to do work only if it is available.

'Personal service'

To qualify for either worker or employee status, there must be a legal obligation for you to carry out work personally. If you have a genuine, unrestricted, legal right to nominate a replacement to do your work, then you will be deemed to be self-employed rather than an employee or worker. It does not matter whether you have ever actually chosen to send a substitute.

Your right to send a replacement must be 'unrestricted'. If the employer demands to have approval over your choice of substitute, then your right is not unrestricted, and you may still be classed as a worker.

You may still be a worker even if your contract allows you to delegate duties to someone else when you cannot perform them yourself – for example, if you are ill or on holiday. If, though, your contract allows you to delegate purely because you do not want to do the work yourself, you are unlikely to have worker status.

'Control'

In seeking to decide your employment status, an employment tribunal will examine the degree of control over how and when you perform your tasks. Where there is an employment relationship, an employer is likely to have the right to control your working hours and when you take holidays, to supervise and direct how you perform your tasks, to discipline you, and to limit your freedom to work elsewhere.

If the tribunal sees evidence that these three characteristics – mutuality of obligation, personal service and control – are present, it will then decide whether the specific facts of your case are consistent with an employment contract. If the answer is 'yes', then you are an employee. Otherwise, you are a worker.

More information about employment contracts