EMPLOYMENT STATUS
Employee or self-employed?
Step 1: Set out s230(1) ERA and s230(2) ERA
Step 2: What does the contract say? Employee or self-employed?
Step 3: Set out the tests and Ready Mixed Concrete
Step 4: Apply each test to the facts of the scenario
After each test, provide a mini-conclusion as to whether the individual would be considered an employee
Step 5:
Reach an overall conclusion as to whether the individual is an employee or an independent contractor
Court will generally place weight on mutuality of obligations so, if in doubt, go with answer suggested by test
WTR
Step 1: Do the Regulations apply?
Step 2: Issue and statutory reference
Step 3: Apply to facts
Step 4: Is more information needed?
Step 5: Remedies
Step 6: Practical solutions?
TYPES OF WORKERS
LO 1: Advise a client as to the legal and practical consequences of the distinction between the different types of
employment status e.g., employees, workers, and independent contractors
SELF-EMPLOYED CONTRACTORS
Individuals who work under a contract for services
End-user pays for the service (the client/customer)
Those who are genuinely self-employed do not benefit from most statutory protection
WORKERS
Different statutory definitions (e.g., Regulation 1 WTR and Regulation 2 WTR), but all definitions include
employees (so, all employees = workers, but all workers ≠ employees)
Workers include other individuals who undertake to personally perform work or provide services, but who are
not in a client/customer relationship with the end user
o Both elements must be met for an individual to be classed as worker
Benefit from some important statutory protection, but cannot claim unfair dismissal
EMPLOYEES
Somebody who has or has had a contract of service (s230(1) and (2) ERA) and is not part of an excluded class
Employees within one of the 'excluded classes' have limited rights:
o Employees on particular FTC which are shorter than 2 years in length are not entitled to redundancy
payments on the expiry of the term without it being renewed if right has agreed to be waived (s197(3))
o For employees on short term contracts of less than one month, s1-7 do not apply (s198)
o Mariners (depending on status) (s199(1) - (8))
o Police (s200(1)-(2))
o Workers employed offshore (s201(2))
Benefit from all employment legislation
,EMPLOYMENT TESTS
LO 2: Explain and apply the four tests which have evolved to distinguish between employees and independent contractors
Ready Mixed Concrete
Individual must have agreed to carry out the work personally in return for pay;
The employer must exercise a sufficient degree of control over the individual; and
There are other provisions that are consistent with a contract of service
+ the ‘irreducible minimum’ (i.e., mutuality of obligations)
PERSONAL SERVICE TEST
Can the individual send a substitute to perform their duties?
Is this right to substitution fettered? (i.e., can the individual choose not to attend, or has to be unable to attend?
And is the individual's choice of substitution limited?)
Is personal service a dominant feature of the agreement?
It does not matter if the individual has never actually exercised their right to provide a substitute
CONTROL TEST
To what degree can the employer control what the individual does, where they do it, when they do it and how
they do it?
o E.g., number of hours worked, which days they work, place of work
The higher the level of control, the more likely it is that they're an employee
o E.g., a system requiring an employee to 'clock in' and reporting to the same place of work
Other questions to consider:
o Does the employer provide tools and equipment?
o Does the employee have regular employment hours?
o Can the employer prevent the person from taking other jobs?
o Is the person called an employee? - this is not conclusive
If the employee is so skilled than an employer would not tell them how to do the job, think of other methods of
control (e.g., taking an associate away from a client/case)
MUTUALITY OF OBLIGATIONS
Is there an obligation on the employer to provide work, and for the individual to perform work when given it?
INTEGRATION AND ECONOMIC REALITY TEST
Is the individual an integral part of the company?
o Are they required for a quorate board vote?
o Is the individual subject to the company's disciplinary or grievance procedure?
o Is the individual paid holiday or sick pay?
o Does the individual wear uniform?
o To what extent is the individual part and parcel of the employer's business (e.g., attending social events
and training sessions)?
Elements of the contract
o Does the individual take a degree of financial risk?
o Does the individual take profit from sound management of tasks?
o Does the individual hire their own helpers?
o Is the individual paid holiday or sick pay?
o Is the individual paid through PAYE or provided an invoice for services?
,WORKING TIME REGULATIONS
LO 3: Advise a client regarding the requirements of the Working Time Regulations 1998
WTR cover workers who are defined as those who work under a contract of employment to personally provide
any work or services to another person/party (Regulation 2)
o Wide enough to include agency workers and freelancers, but excludes self-employed
Provisions of the WTR are implied into every contract of employment
48-HOUR WEEK (Regulation 4)
Each worker should work no more than 48 hours per week on average over a reference period of 17 weeks
'Working time' is defined as when the employee is working, at the employer's disposal and carrying out his
activities or duties (Regulation 2)
Workers may opt out of the 48-hour working week, by written agreement
Worker can give written notice to opt back in and employer cannot require that notice to be more than 3 months
Employers must maintain records of the names of workers who have opted out
PAID ANNUAL LEAVE (Regulation 13 and 13A)
Amount
All workers are entitled to 5.6 weeks' paid annual leave (equating to 28 days for a full time worker) – pro-rated
for a part time worker
8 bank holidays in E&W count towards the statutory entitlement of 5.6 weeks and are not additional
Workers must be paid at a rate of a week's pay for each week's leave calculated in accordance with the regime
contained in s221-224 ERA (Regulation 16)
Payment in lieu
An employer may not pay a worker in lieu of permitting him to take annual leave, except on termination
(Regulation 13(9)(b))
Rollover
An employer may not allow a worker to roll over any part of his holiday entitlement to the next holiday year
(Regulation 13(9)(a))
A worker may however be permitted by their employer to roll over any contractual leave entitlement over and
above their entitlement under the Regulations
Notice
Regulated by Regulation 15 (in the absence of a contrary agreement between worker and employer)
Worker must give notice to his employer of his intention to take leave
Notice must be at least twice as long as the amount of leave requested
If the employer refuses, he must serve a counter-notice at least as long as the number of days refused
Employer may require a worker to take all or part of their leave on certain dates, giving notice of that
requirement at least twice the amount of time of the leave
Accrual
Stringer v Revenue & Customs Commissioners
o Entitlement to paid holiday does accrue whilst an employee is absent on sick leave; BUT
o [It is for the member states to decide whether workers may take their holiday while they are on sick
leave]; AND (HoL confirmed the decision)
o After termination of the contract, workers are entitled to a compensatory payment to reflect accrued
but untaken holiday leave, even where the worker was on sick leave for the full holiday year
Where a worker falls ill before or during a period of pre-planned annual leave, the worker (if he so requests)
must be granted a replacement holiday period
Carry-over of untaken statutory annual leave must be "substantially longer" than the annual leave year -
recommendation of 18 months as a general guideline
o Regulation 13(9) amended as a result
Part-time workers and bank holidays
Bank holidays may have to be pro-rated for part-time staff
REST PERIODS
Daily rest – adult workers are entitled to 11 consecutive hours' rest in each 24 hour period (Regulation 10)
Weekly rest – adult workers are entitled to a rest period of 24 hours in each seven day period (Regulation 11)
, Rest breaks – after six hours at work, a worker is entitled to a rest break of at least 20 minutes (Regulation 12)
NIGHT WORK
Night time means a period of seven hours which includes midnight to 5am (Regulation 2)
A night worker is an individual who, on the majority of days on which they work, works at least three hours
during night time (Regulation 2)
Night workers' normal hours of work should not exceed an average of eight hours in every 24 hours during a 17
week period
An employer may not assign a worker night work unless it has given the worker the opportunity of a free health
assessment before he takes up the assignment
Once a night worker has commenced an assignment, the employer must ensure that the night worker has the
opportunity of a free health assessment at regular intervals
EXCEPTIONS
Unmeasured working time
o Regulation 20 – those workers whose working time is not measure/pre-determined, or can be
determined by the workers themselves are excluded from the 48-hour work week, rest periods/breaks
and hours of work for night workers
Special cases
o Regulation 21 – the rules relating to daily and weekly rest periods and breaks, and night work hours are
disapplied for some workers (e.g., those employed in hospitals or prisons, or workers involved in gas,
water, and electricity production) subject to the worker being allowed to take compensatory rest as
defined in Regulation 24
o Reference period for calculating the average working week is extended from 17 weeks to 26 weeks
ENFORCEMENT AND REMEDIES
Regulation 30 – allows individual workers to complain to an ET about an employer’s refusal to permit a worker to
exercise a relevant right
o Claims must be presented within 3 months of when the right should have been permitted
Remedies for failure to allow the exercise of a relevant right are a declaration and compensation which is just
and equitable in all the circumstances
SUNDAY WORKING
In most industries, an employer can require an employee to work on a Sunday, provided it is written into the
employee's contract
Special laws for employees who work in shops and betting shops
o s40 ERA - these employees have a right to opt out of Sunday working by giving their employers a signed
and dated notice which will take effect after three months
o Retailers/betting businesses must inform their employees of their right to opt out - written statement
in a prescribed form explaining how to serve an opt-out notice must be given to the employee within
two months of the employee becoming entitled to the opt out
Employee has a right not to be dismissed, selected for redundancy, or subjected to any other detriment for
opting out (s45 ERA)
The Enterprise Act 2016 (inserted s41A - 41D ERA) strengthens retail workers' rights in relation to Sunday
working
Employee or self-employed?
Step 1: Set out s230(1) ERA and s230(2) ERA
Step 2: What does the contract say? Employee or self-employed?
Step 3: Set out the tests and Ready Mixed Concrete
Step 4: Apply each test to the facts of the scenario
After each test, provide a mini-conclusion as to whether the individual would be considered an employee
Step 5:
Reach an overall conclusion as to whether the individual is an employee or an independent contractor
Court will generally place weight on mutuality of obligations so, if in doubt, go with answer suggested by test
WTR
Step 1: Do the Regulations apply?
Step 2: Issue and statutory reference
Step 3: Apply to facts
Step 4: Is more information needed?
Step 5: Remedies
Step 6: Practical solutions?
TYPES OF WORKERS
LO 1: Advise a client as to the legal and practical consequences of the distinction between the different types of
employment status e.g., employees, workers, and independent contractors
SELF-EMPLOYED CONTRACTORS
Individuals who work under a contract for services
End-user pays for the service (the client/customer)
Those who are genuinely self-employed do not benefit from most statutory protection
WORKERS
Different statutory definitions (e.g., Regulation 1 WTR and Regulation 2 WTR), but all definitions include
employees (so, all employees = workers, but all workers ≠ employees)
Workers include other individuals who undertake to personally perform work or provide services, but who are
not in a client/customer relationship with the end user
o Both elements must be met for an individual to be classed as worker
Benefit from some important statutory protection, but cannot claim unfair dismissal
EMPLOYEES
Somebody who has or has had a contract of service (s230(1) and (2) ERA) and is not part of an excluded class
Employees within one of the 'excluded classes' have limited rights:
o Employees on particular FTC which are shorter than 2 years in length are not entitled to redundancy
payments on the expiry of the term without it being renewed if right has agreed to be waived (s197(3))
o For employees on short term contracts of less than one month, s1-7 do not apply (s198)
o Mariners (depending on status) (s199(1) - (8))
o Police (s200(1)-(2))
o Workers employed offshore (s201(2))
Benefit from all employment legislation
,EMPLOYMENT TESTS
LO 2: Explain and apply the four tests which have evolved to distinguish between employees and independent contractors
Ready Mixed Concrete
Individual must have agreed to carry out the work personally in return for pay;
The employer must exercise a sufficient degree of control over the individual; and
There are other provisions that are consistent with a contract of service
+ the ‘irreducible minimum’ (i.e., mutuality of obligations)
PERSONAL SERVICE TEST
Can the individual send a substitute to perform their duties?
Is this right to substitution fettered? (i.e., can the individual choose not to attend, or has to be unable to attend?
And is the individual's choice of substitution limited?)
Is personal service a dominant feature of the agreement?
It does not matter if the individual has never actually exercised their right to provide a substitute
CONTROL TEST
To what degree can the employer control what the individual does, where they do it, when they do it and how
they do it?
o E.g., number of hours worked, which days they work, place of work
The higher the level of control, the more likely it is that they're an employee
o E.g., a system requiring an employee to 'clock in' and reporting to the same place of work
Other questions to consider:
o Does the employer provide tools and equipment?
o Does the employee have regular employment hours?
o Can the employer prevent the person from taking other jobs?
o Is the person called an employee? - this is not conclusive
If the employee is so skilled than an employer would not tell them how to do the job, think of other methods of
control (e.g., taking an associate away from a client/case)
MUTUALITY OF OBLIGATIONS
Is there an obligation on the employer to provide work, and for the individual to perform work when given it?
INTEGRATION AND ECONOMIC REALITY TEST
Is the individual an integral part of the company?
o Are they required for a quorate board vote?
o Is the individual subject to the company's disciplinary or grievance procedure?
o Is the individual paid holiday or sick pay?
o Does the individual wear uniform?
o To what extent is the individual part and parcel of the employer's business (e.g., attending social events
and training sessions)?
Elements of the contract
o Does the individual take a degree of financial risk?
o Does the individual take profit from sound management of tasks?
o Does the individual hire their own helpers?
o Is the individual paid holiday or sick pay?
o Is the individual paid through PAYE or provided an invoice for services?
,WORKING TIME REGULATIONS
LO 3: Advise a client regarding the requirements of the Working Time Regulations 1998
WTR cover workers who are defined as those who work under a contract of employment to personally provide
any work or services to another person/party (Regulation 2)
o Wide enough to include agency workers and freelancers, but excludes self-employed
Provisions of the WTR are implied into every contract of employment
48-HOUR WEEK (Regulation 4)
Each worker should work no more than 48 hours per week on average over a reference period of 17 weeks
'Working time' is defined as when the employee is working, at the employer's disposal and carrying out his
activities or duties (Regulation 2)
Workers may opt out of the 48-hour working week, by written agreement
Worker can give written notice to opt back in and employer cannot require that notice to be more than 3 months
Employers must maintain records of the names of workers who have opted out
PAID ANNUAL LEAVE (Regulation 13 and 13A)
Amount
All workers are entitled to 5.6 weeks' paid annual leave (equating to 28 days for a full time worker) – pro-rated
for a part time worker
8 bank holidays in E&W count towards the statutory entitlement of 5.6 weeks and are not additional
Workers must be paid at a rate of a week's pay for each week's leave calculated in accordance with the regime
contained in s221-224 ERA (Regulation 16)
Payment in lieu
An employer may not pay a worker in lieu of permitting him to take annual leave, except on termination
(Regulation 13(9)(b))
Rollover
An employer may not allow a worker to roll over any part of his holiday entitlement to the next holiday year
(Regulation 13(9)(a))
A worker may however be permitted by their employer to roll over any contractual leave entitlement over and
above their entitlement under the Regulations
Notice
Regulated by Regulation 15 (in the absence of a contrary agreement between worker and employer)
Worker must give notice to his employer of his intention to take leave
Notice must be at least twice as long as the amount of leave requested
If the employer refuses, he must serve a counter-notice at least as long as the number of days refused
Employer may require a worker to take all or part of their leave on certain dates, giving notice of that
requirement at least twice the amount of time of the leave
Accrual
Stringer v Revenue & Customs Commissioners
o Entitlement to paid holiday does accrue whilst an employee is absent on sick leave; BUT
o [It is for the member states to decide whether workers may take their holiday while they are on sick
leave]; AND (HoL confirmed the decision)
o After termination of the contract, workers are entitled to a compensatory payment to reflect accrued
but untaken holiday leave, even where the worker was on sick leave for the full holiday year
Where a worker falls ill before or during a period of pre-planned annual leave, the worker (if he so requests)
must be granted a replacement holiday period
Carry-over of untaken statutory annual leave must be "substantially longer" than the annual leave year -
recommendation of 18 months as a general guideline
o Regulation 13(9) amended as a result
Part-time workers and bank holidays
Bank holidays may have to be pro-rated for part-time staff
REST PERIODS
Daily rest – adult workers are entitled to 11 consecutive hours' rest in each 24 hour period (Regulation 10)
Weekly rest – adult workers are entitled to a rest period of 24 hours in each seven day period (Regulation 11)
, Rest breaks – after six hours at work, a worker is entitled to a rest break of at least 20 minutes (Regulation 12)
NIGHT WORK
Night time means a period of seven hours which includes midnight to 5am (Regulation 2)
A night worker is an individual who, on the majority of days on which they work, works at least three hours
during night time (Regulation 2)
Night workers' normal hours of work should not exceed an average of eight hours in every 24 hours during a 17
week period
An employer may not assign a worker night work unless it has given the worker the opportunity of a free health
assessment before he takes up the assignment
Once a night worker has commenced an assignment, the employer must ensure that the night worker has the
opportunity of a free health assessment at regular intervals
EXCEPTIONS
Unmeasured working time
o Regulation 20 – those workers whose working time is not measure/pre-determined, or can be
determined by the workers themselves are excluded from the 48-hour work week, rest periods/breaks
and hours of work for night workers
Special cases
o Regulation 21 – the rules relating to daily and weekly rest periods and breaks, and night work hours are
disapplied for some workers (e.g., those employed in hospitals or prisons, or workers involved in gas,
water, and electricity production) subject to the worker being allowed to take compensatory rest as
defined in Regulation 24
o Reference period for calculating the average working week is extended from 17 weeks to 26 weeks
ENFORCEMENT AND REMEDIES
Regulation 30 – allows individual workers to complain to an ET about an employer’s refusal to permit a worker to
exercise a relevant right
o Claims must be presented within 3 months of when the right should have been permitted
Remedies for failure to allow the exercise of a relevant right are a declaration and compensation which is just
and equitable in all the circumstances
SUNDAY WORKING
In most industries, an employer can require an employee to work on a Sunday, provided it is written into the
employee's contract
Special laws for employees who work in shops and betting shops
o s40 ERA - these employees have a right to opt out of Sunday working by giving their employers a signed
and dated notice which will take effect after three months
o Retailers/betting businesses must inform their employees of their right to opt out - written statement
in a prescribed form explaining how to serve an opt-out notice must be given to the employee within
two months of the employee becoming entitled to the opt out
Employee has a right not to be dismissed, selected for redundancy, or subjected to any other detriment for
opting out (s45 ERA)
The Enterprise Act 2016 (inserted s41A - 41D ERA) strengthens retail workers' rights in relation to Sunday
working
