Employment Status and Rights
Before trying to consider what your employment rights are, you firstly need to ask yourself am I an employee, a worker or an independent contractor? There are so many different and atypical working arrangements that it can often be confusing with some people assuming they have one status when in actual fact they have another.
In order to determine your employment status you need to address some questions, for example –
- Do you have a contract of employment?
- What does my contract say?
- Is the contract clear in what the terms of the agreement are?
- Is what actually happens in practice different to what the contract says?
- Is my employer obliged to provide work?
- Am I obliged to accept work?
- When is the obligation triggered? – “As and when” or does it exist generally?
- What actually happens week to week? (Does the paper reflect the practice?)
- Have things developed into a pattern over the years?
- Am I told what to do and how to do it?
- Do I determine what needs to be done and in what way?
- Can I appoint a substitute or must I provide the service personally?
- Am I obliged to follow/use the internal rules etc of the organisation?
- Do I use my own equipment, wear a uniform etc?
- What are the tax and National Insurance arrangements?
- Am I restricted in who else I can work for?
- Am I penalised (not offered work for a time) for refusing work?
It is only when you have clear answers to these questions can you determine, with any degree of certainty, what your employment protection rights actually are.
Under Article 3(1) of the Employment Rights (NI) Order 1996 (ERO 1996), an employee is defined as being "an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment”. Under Article 3 (2) of ERO 1996, a contract of employment means "a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing".
The terms "contract of service" and "contract for services" are not statutory constructs and how the contract is categorised and their status determined is derived from case law. The question of whether a person operates under a contract of service is often both a question of fact and a question of law.
In a non-legal sense the term worker seems a like a generic label for anyone that works but in reality a worker is an ever developing legal construct. A worker is defined in the Employment Rights (NI) Order 1996 in Article 3 (3) as an individual who has entered into or works under (or, where the employment has ceased, worked under):
- A contract of employment; or
- Any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual.
In simple terms workers have less employment protection rights than employees, but as somewhat of a hybrid construct statutory employment protections often cover workers as well as employees. The above definition of "worker" can also be found in the Working Time Regulations 1998), the National Minimum Wage Regulations 2015 and the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 , and there is a slightly wider definition under the Public Interest Disclosure (NI) Order 1998.
Quite often someone will be engaged in work whereupon they are categorised (rightly or wrongly) as being casual, zero hours, cover or some other term that means not permanent and generally not an employee. It is difficult to generalise about this category of individual without knowing the answers to the questions listed above and the particular “facts sensitivities” – for example the paper not reflecting the practice, the self-employed status being a “sham”, a long established working arrangement through custom and practice being at odds with what the arrangement began. Each case will turn on its particular facts and as such a diagnostic approach is often required using the above listed questions as a starting point.
Ultimately it is up to an industrial tribunal to determine the status of an individual and the level of protection afforded by employment protection laws.
List of basic employment rights – At a glance
|Right not to be unfairly dismissed (after 1 yrs’ service)||Yes||No||No|
|Right to receive written statement of particulars / terms and conditions||Yes||No||No|
|Statutory minimum notice||Yes||No||No|
|Statutory redundancy pay (after 2 yrs’ service)||Yes||No||No|
|Protection from discrimination in the workplace||Yes||Yes||Possibly|
|National Minimum Wage||Yes||Yes||No|
|Protection from unlawful deduction from wages||Yes||Yes||No|
|Paid annual leave||Yes||Yes||No|
|Right to daily and weekly rest breaks||Yes||Yes||No|
|Right to be accompanied at a disciplinary or grievance hearing||Yes||Yes||No|
|Rights under data protection legislation||Yes||Yes||Yes|
|Protection under anti-discrimination law||Yes||Yes||Yes|
|Statutory Sick Pay||Yes||Possibly||No|
|Shared parental leave and pay (if qualifying criteria is met)||Yes||No||No|
|Unpaid time off to care for dependants||Yes||No||No|
|Right to request flexible working||Yes||No||No|
|Time off rights (in general)||Yes||No||No|
|Right not to suffer detriment in certain contexts||Yes||Possibly||No|
|Protection under TUPE legislation||Yes||No||No|
|Certain payments on insolvency||Yes||No||Possibly|
|Health and Safety in the workplace||Yes||Yes||Yes|