EMPLOYMENT LAW DISTINCTION BETWEEN ‘EMPLOYEES’ & ‘WORKERS’ AFFECT HOLIDAY & PAY RIGHTS

Affect who the employer is and who is responsible for one’s wage or salary, holiday pay, employer’s contribution to national insurance, pension rights, and employment protection, the legal distinction made between “employees” and “workers”, and between those and “contractors” ~one’s entitlements depend on whether in the eyes of the law one is an employee, or a worker, subcontractor, self employed contractor –or partly a freelancer.

Because of their different legal definitions an ’employee’ or a ‘worker’ in the eyes of the law may be in fact a ‘contractor’ or a ‘subcontractor’, and vice-versa -and employment through an employment agency may or may not itself fall in different category. Definitions and categories affect entitlements.

Many employees lose out on entitlements, because their legal employment category, or because who the law regards as employer, is different than they think or have been told. When one is paid to do work for another it is important to know how the employment contract is formed, and one’s employment status.

Are you liable for your income tax or must the employer deduct it and attend to it at source, what are your holiday and pension entitlements and whose responsibility are they, are you entitled to employer’s part of your national insurance contribution –who is your employer at the workplace that you work, the business you work on the premises of, or an employment agency, or is it you whose responsibility those are, in the eyes of the law?

These affect liability, vicarious liability and the statutorily implied terms of any contract -as well as various other statutory requirements ~from equal treatment to employment protection under the employment laws -many have sued and lost because the employer was not in law the sued party but another.

Often these also affect ‘pay’ (in law defined as being what is received directly or indirectly in cash or kind for work done) ~an ’employee’ gets full holiday pay, paid leave -a ‘worker’ does not.

In employment there is sometimes a company pension scheme; as the norm the employer must pay part of one’s national insurance contributions (covering, e.g., unemployment, health-care, state-pension) if one is an ’employee’; but the entitlement is partial if one is a ‘worker’, and nil if one is in law a ‘contractor’ -one’s employment status matters.

The following helps ascertain one’s employment status in law, and who in law is one’s employer.

Is one an ’employee’ or ‘self-employed contractor’? There are three tests that are applied to the question:-

The first is the ‘Control Test’ and is based on this that if the employer controls the job to be done but not how it is done than the person doing the job is an employee; but this test would not be satisfactory, because also to an employee with specialist knowledge, e.g. a company nurse, the employer would not tell how to do the job.

The second, ‘Organisational Integration Test’, seeks to ascertain whether the person paid is an integral part of the business: an anaesthetist was not a self-employed contractor in Cassidy -v- The Ministry of Pensions 1961 ~he was a resident of the hospital -an employee.

But this did not suffice: drivers who were paid for an agreed minimum number of jobs per year and had to wear company uniforms as well as to have the company colours on their lorries and who could not work for the competition without the employer’s permission, but who could choose to do extra work and decided their own routes and used their own lorries and could use at their pleasure substitute drivers, in Ready Mixed Concrete -v- The Ministry of Pensions 1968 were self-employed contractors, not employees.

There is a third, the ‘Multiple Test’ to be applied: ‘one is an employee if.. provides work or service for remuneration.. the business has some degree of control.. without any terms contrary to the employment relationship.’

This is the consideration in the case of those engaged or introduced by employment agencies:-

Who is the employer? Is one, as a specific individual, under the direct supervision and control of the business? If so, one is an employee of the client business -where one works…

Does the business where one works pay that agency and that agency itself pay one? If so, one is not an employee of the client business, but may be an employee or worker of that agency itself -agency staff.

Employees normally receive holiday pay, self employed contractors do not ~but what about the ‘worker’-the casual worker who is not in self employment and yet is also not a regular employee?

Is one an ’employee’ or ‘worker’? There is a different ‘worker’ category for casual workers which was created under the Employment Rights Act 1996 s.230 (3) to deal with this question.

If a casual worker is genuinely on an ad hoc basis employed, that casual worker is, in law, an employee while he is employed, and for the period/s of such employment has employment rights -e.g., to receive wages and holiday pay.

A ‘subcontractor’ normally would be in the category either of employee or of worker on the same basis, but instead of the business where the sub contractor works, of the self employed contractor who engaged the sub contractor.

If there is a dispute about whether a contractor engaged a subcontractor as a self employed person, then the same three tests above are applied to ascertain the employment status of that subcontractor in relation to that contractor.

If that subcontractor receives a wage and is not self-employed in relation to that contractor, then if the subcontractor works regularly for that contractor he is an employee of that contractor, and if he works casually for that contractor he is a worker of that contractor.

Being a ‘freelance-worker’ is, to all intends and purposes, the same as being a self-employed contractor.

One can lawfully be both: an employee or worker, as well as a freelancer -self employed.

If one who is normally an employee or worker wants also to do some freelance work, then one officially is an employee or worker and one’s entitlements in relation to ones normal status are not affected -but those entitlements do not extend to one’s freelance work and employment.

If one normally self employed wants also to do some work as an employee or worker of a business, then one’s official status as self-employed does not change -but one’s entitlements for work done as an employee or worker are not affected to the extent of one’s such work.

If one is not paid for holidays.. if a pension scheme depends on whether one is a freelancer or not.. if the employer is responsible for one’s colleagues’ taxes or pension contributions but not one’s own.. if one is working for one business but is paid by another… one might need to ascertain one’s employment status -the above are the legal tests.

(Laws change –always ascertain current law.)

The author has a website at: http://www.geocities.com/eoa_uk

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2 Responses

  1. im working 4 a company trouvaille trading in dorset,but im a con tactor 4 the m.o.d lackenheath usa air base trouvaille trading pay me and take my tax and ni plus travel costs thay take off me on all of my wage slips it says hoilday taken 0 hol remaining 0 please help me every other agencey ive worked 4 ive been payed holiday money cash or u work through it but still get paid. ive tryed 2 get a copy of my contract but being messed around and can never seem 2 get appointment with cizt advise b thank you please help?one last thing we dont get payed 4 usa or english hoildays

  2. i work as a contractor 4 tha mod usa airbase lackenheath im contracteted by trouviilli trading dorset thay pay my tax and n.i but i dont get hol pay is this right by law on my wage slip every week it says hol taken nil hol remaing nil ive worked 4 afew agencys and have been giving hol pay every time it worked at aday and half every month or sumthink like that also tryin 2 get a copy of my contract is blocked every time with sum reason please could u help me to no my rights thanku so much

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