Employment Status - Lecture notes 3 PDF

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Katy McFarlane lecturer...

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3. EMPLOYMENT STATUS There are several different types of employment status: Employee, worker, self employed or something else. The status that an individual has will determine the legal rights and protections that they can call upon in the event of a conflict. It is not always a straightforward process to determine the status of the individual. Windle v Secretary of State for Justice A freelance interpreter (W) who provided interpretation services for the Courts and Tribunals Service (HMCTS) wanted to know whether or not she was an employee or a worker. It was held that she was an employee. “The question of employee/worker or neither status has troubled courts and Tribunals for many years. The distinctions are central to the level of employee protection afforded to individuals and their “employers”.”

(a) Employee Is everyone who works, an employee? No, but all employees are workers. “Employee” defined in both s230(1) of the Employment Rights Act 1996 (ERA) and s295(1) of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) as being: “an individual who has entered into or works under … a contract of employment”. 

An employee has a contract of employment – either verbal or written. An employee also has the right to have a “written statement of particulars of employment” (section 1(1) of ERA 1996)

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An “employee”, is entitled to a range of minimum rights and protections under the law. These include the right to: o o o o o o o

receive a statement of particulars of employment receive the national minimum wage bring a claim for unfair dismissal receive Statutory Sick Pay get time off for emergencies have maternity or paternity leave have time off when an emergency

(workers are also entitled to some of these protections but not all of them (they can't claim for unfair dismissal) therefore it is important to determine your employment status). (b) Worker “Worker” is defined in s230 (3) of the 1996 Act as being: “an individual who has entered into or works under … (a) a contract of employment, or (b) any other contract, whether express or implied ….. 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 …” The term “worker” covers “employees”, but, it also covers those workers who don’t have a contract of employment (verbal or written) and a written statement (under section 1(1) of 1996 Act), but who, still, have entered an agreement to provide their services to an employer. This group is known as: “atypical workers” Examples of “atypical workers”? 

Casual workers – the work supplied by a casual worker is on an informal and irregular basis. 

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For example people working with a 0 hour contract: they can be open to a high level of exploitation so are quite controversial but can be convenient for some people. Used to have an exclusivity contract which meant worker could not work for a different employer but this is not the case now. Casual workers can sometimes claim that the regularity of the work amounts to employee status: depends on the circumstances of the case. o O’Kelly v Trusthouse Forte plc  “regular casual” work at hotel. Three of the regular casuals raised a claim for unfair dismissal - cannot do this unless you are an employee because employees have the legal status to do this. These three workers said that due to the regularity they should not be considered casual workers. Went to the EAT (employment appeals tribunal) and it was found they were not considered employees. Although they were regular; the employers had no obligation to call them to work on a regular basis and the workers were free to take on work with another employer (by contract). o Drake v Ipsos Mori UK Ltd  EAT stated that a person working under a succession of individual contracts could be considered an employee. Sometimes for an employer, it is better that the people who work

for him/her are not employees because it does not burden them with obligations to provide certain protection. In this case there was an employee working under a series of small contracts and it was determined that this may have been used to avoid the status of employee. He tried to make a claim which he could not due to his "worker status" but the EAT amended his status to employee after considering all of the small contracts which amounted to a contract of employment as an employee, not just a worker 

Voluntary workers: volunteering generally defined as unpaid work Each case will turn on its own facts as to whether a “volunteer” is considered an employee or not. For example: Southeast Sheffield CAB v Grayson [2004] IRLR 253 G brought a claim for discrimination against CAB. G not employee. But see: Murray v Newham CAB (UKEAT/1096/99) M volunteered at specified times for a minimum period and was paid expenses and given training by the CAB. Held to be employee after assessing the facts and circumstances of the case. Therefore in some cases, a volunteer could be classes as an employee.

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Agency workers: an agency worker – contract with employment business (agency). Agency has contract with client to supply workers.

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Fixed term workers: workers on a fixed term contract provide employment for a specified term which automatically terminates at the end of that fixed term. See: Fixed Term Employees (Protection of Less Favourable Treatment) Regs 2002

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Part-time workers: a part-time worker is someone who does not work fulltime! Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 – introduced rights and legal redress for part-time workers who were treated less favourably than their full-time colleagues....