Employment Status

Employment Status and Statutory Employment Rights

Your rights at work will depend on your contract with your employer and your statutory rights.

For more information on your contract follow this link.

Which statutory employment rights you will qualify for will depend on your employment status.

In the UK there are three main types of employment status:

• Employee
• Worker
• Self-employed

Factors which determine an individual's employment status

EMPLOYEES

If most of the factors below apply to you, you are likely to be an 'employee'.

• You are expected to attend work on a regular basis unless you are on annual leave, sick leave or on family friendly related leave (e.g. maternity leave) which has been agreed with your employer
• You are required to work a minimum number of hours, whether fixed or variable, and you expect to be paid for the hours that you work
• A manager or supervisor is responsible for telling you what work you should do, and when and how to do your work. Some employees may be able to organise how they use their own working time and set some of their own objectives
• The organisation deducts tax and national insurance from your wages
• You cannot send a substitute to do your work
• The organisation provides you with the equipment and tools you need to do your job
• You can use your employer's grievance procedure
• You are covered by your employer's disciplinary and redundancy procedures
• You have a written contract with the organisation which refers to you as an employee or states that it is a contract of employment

It makes no difference if you are employed on a fixed term contract. You are still likely to be an employee if the factors listed above apply to you.

Individuals who are employees qualify for all statutory employment rights, subject to any qualifying periods.

'WORKERS'

Some individuals employed in casual or irregular work are classified as workers for the purposes of employment law. 'Workers' do not benefit from 'employee'-only rights, but will benefit from other basic rights at work, including the National Minimum wage, the right to paid annual leave, and protection from unfair deductions from pay and protection from discrimination and victimisation because of trade union membership or activities.

If most of the factors below apply to you, you are likely to be a 'worker':

• Your employer has no obligation to offer work and you are not required to accept work if it is offered to you
• Any written contract you have with the organisation describes your working relationship as 'casual', 'freelance', 'zero hours' or 'as required'
• You are expected to do your work yourself
• The organisation deducts tax and national insurance from your wages
• The organisation provides you with the equipment and tools you need to do your job

If you are an agency worker please see the section on employment status for agency workers.

'SELF-EMPLOYED'

If most of the factors below apply to you, you are likely to be 'self employed'.

• You are responsible for paying your own tax and national insurance
• You bid or provide quotes to secure work and then submit invoices to receive payment
• You have specific jobs or targets to complete, although you decide when and how to do the work
• You do not have to carry out the work personally - you can hire another person to do the work or hire other helpers at your own expense
• You are not under direct supervision when you are working
• You are responsible for meeting any losses, as well as taking profits from your own work
• You do not receive any holiday pay or sick pay from the organisation when you are unavailable for work
• You provide major items of equipment or materials that are a fundamental requirement to complete a job
• You have to correct unsatisfactory work in your own time and at your own expense
• You might provide your services to a number of different clients

Individuals who are genuinely self-employed enjoy only limited statutory rights, including the right to a safe working environment when on an employer's premises and protection from discrimination.

Bogus self-employment

Just because your employer refers to you or your contract labels you as 'self-employed' it does not mean you necessarily are self-employed. What matters is what happens in reality in the workplace.

It is important to note that when deciding a person's employment status the Tribunals and Courts will consider your entire working relationship and what happens in practice when you are working.

Some rogue employers try to avoid employment rights by inserting a substitution clause into contracts, which permits individuals to send a substitute to do their work. In some cases, the Tribunals and Courts have decided such clauses are a sham and are not effective especially where an individual would not use a substitute in practice to finish their work.

Other employers try to claim people are self-employed because they use some of their own their own tools to do their work (e.g. a painter and decorator using their own paint brush). A Court or Tribunal is more likely to decide a person is self employed if they provide major pieces of equipment necessary to do their job.

Volunteers

Individuals who do some tasks for an employer on a purely voluntary basis and who do not expect to be paid for their work may not be entitled to most statutory employment rights. This is because they do not have a contract or an employment relationship with the employer.

However, just because an employer labels you as a volunteer, refuses to pay you or only pays your expenses does not mean you have no rights at work.

You will only be a genuine volunteer if you freely agree to work for no pay and you are not under any obligation or pressure to work or will not suffer any detriment if you do not turn up for work.

Voluntary workers

Voluntary workers who work for a charity or Government agency do not have the right to be paid the National Minimum Wage (NMW). For more information on NMW rights for voluntary workers, follow this link. This exemption only applies to NMW rights. Voluntary workers will be entitled to other statutory employment rights, depending on whether they are a 'worker' or an 'employee'.

Work experience and internships

Individuals and young workers on work experience placements or internships will not automatically lose out on statutory employment rights.

Whether interns or work experience students are entitled to statutory employment rights will depend on what happens in the workplace. If an individual is simply shadowing an individual to learn what work in a particular profession or industry involves, they may not be entitled to basic statutory employment rights. However if they are doing work of real value and receive any remuneration, including in some cases expenses, or benefits in kind for the work they do, they are likely to be at least 'workers' and entitled to basic statutory employment rights, including the National Minimum Wage.

Some interns and work experience students may also be employees, especially if they are under an obligation to go to work on a regular basis.

Apprentices

Genuine apprentices will be employed on a contract of apprenticeship which is a special form of employment contract: it is a contract for training rather than actual employment. Its first purpose is training; doing work for the employer is secondary. Nevertheless, employment rights still apply to apprentices.

Generally apprentices have the same rights as employees. Although certain apprentices do not qualify for some 'employee' rights including the right to request to work flexibly, and the right to equal treatment for fixed term employees.

Apprentices are entitled to the National Minimum Wage - either the apprentice rate or one of the higher rates. Which rate applies will depend on your age and whether you are still in the first year of your apprenticeship. For more information go to ....

Trainees

Generally employment rights apply to trainees as to other groups of workers. Whether a trainee is a 'worker' or an 'employee' will depend on their contract and employment relationship with their employer.

Some trainees on Government funded schemes will however not qualify for some employment rights. This includes the National Minimum Wage (link to section on individuals not entitled to the NMW) and the right to equal treatment for fixed workers.