Employee, self-employed or worker? – The Bitesized Edition

23rd April 2024

Employment status can be complex if an organisation does not define the relationship with an individual clearly and reflective of the actual relationship in practice. And this needs to be clear at the outset of the relationship and then reviewed on a regular basis.

Often organisations issue a contract, whether that is an employment contract, casual worker contract or contract for services, expecting to rely on just those terms. However, it is not enough even if the individual signs and agrees to the terms. This is where organisations are often caught out.

It is therefore important that organisations, especially those who employ casual workers or self-employed contractors, review their contracts, terms and the relationship in practice on a regular basis.

As most will have seen, Uber suffered a huge blow when it was found by the Supreme Court their drivers were workers, and not self-employed. This meant Uber’s drivers had more employment rights than that of a self-employed individual. Uber owed its drivers holiday pay and, in some cases, the national minimum wage. Uber are not the only employer to have been caught out.

There are a number of things to consider when assessing whether an individual is an employee or a worker. Here is a brief summary of those key tests considered when assessing employment status. 

1. Personal Service

This comes down to whether the individual is contractually obliged to provide their personal service and whether there an unfettered right to appoint a substitute.

2. Mutuality of Obligations

To establish worker status, there is no essential requirement for an “irreducible minimum of obligation”. However, for an employee there will be an obligation on the employer to provide work and an obligation on the employee to accept work.

This does extend to open ended opportunity to work over a certain period of time and it does not require work to be offered when there is no work available.

When considering mutuality of obligations, you will need to look at:

  • Length of service;
  • The regularity of work;
  • The expectation of work being offered in the future; and
  • Whether the individual can turn down the work.

3. Control

This will take into account whether the employer has the right to direct what the individual does, such as place of work, hours of work and subjecting them to day-to-day direction, rules and policies.

It is best practice for organisations to undertake risk reviews of the status of those they engage on a regular basis, using the key tests set out above and the update the contracts etc if following these risk reviews the status has changed.

Need more information?

For more information on these changes or assistance with updating your policies or contracts, you can contact our Employment Client Services team on employmentinfo@daslaw.co.uk or call on 0344 2640102.

Top 10 Settlement Agreement tips for employers

The purpose of a Settlement Agreement is to bring an employment relationship to an end by mutual agreement. Here are our top 10 tips for moving people on with settlement agreements.

March 2024 Learn more
How Maternity, Adoption and Shared Parental Leave regulations are changing this year

In this Bitesized Edition, we look at the new Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations, set to come into force on 6 April 2024.

February 2024 Learn more
How flexible working regulations are changing this year

Amendments to the current flexible working legislation will come into force this year. Any flexible working applications made on or after 6 April 2024 must be dealt with in accordance with the regulations.

January 2024 Learn more

Read more from the DAS Law blog

Employment disputes 10 top TUPE tips for employers – Transferees

TUPE kicks in when there is a transfer of a business from one organisation to another or there is a service provision change from one provider to another.

June 2024
Employment disputes Faulty products face recalls – these are your rights when things go wrong

Gurkaran Singh Gill looks at what you can do if you have bought a faulty product.

May 2024
Employment disputes 10 top TUPE tips for employers – Transferors

Here are our top 10 TUPE tips for the Transferor – this is usually the seller of the business to another or a client seeking to outsource a service.

May 2024
Employment disputes What employers need to know about performance management and grievances

Thomas Eastment, Legal Adviser at DAS, looks at how employers can balance performance management while ensuring fair and legally compliant grievance resolution.

May 2024
Employment disputes Managing absence – an employer’s perspective

Employers must navigate the delicate balance between supporting staff welfare and ensuring operational efficiency.

April 2024
Employment disputes Employee, self-employed or worker? – The Bitesized Edition

Employment status can be complex if an organisation does not define the relationship with an individual clearly and reflective of the actual relationship in practice.

April 2024
Employment disputes Workplace stress: your responsibilities as an employer

Commenting on Stress Awareness Week, Sarah Garner, Solicitor at DAS Law, takes a look at what the law says employers needs to do about stress.

April 2024
Employment disputes International Stress Awareness Month: your workplace rights

To mark International Stress Awareness Month, Sarah Garner takes a look at what the law says your employer needs to do about workplace stress.

April 2024
Employment disputes Don’t get in trouble with the law on April Fool’s Day

When does the line between hilarious and harsh get crossed and can a prank turn into legal proceedings?

March 2024
Employment disputes Top 10 Settlement Agreement tips for employers

The purpose of a Settlement Agreement is to bring an employment relationship to an end by mutual agreement. Here are our top 10 tips for moving people on with settlement agreements.

March 2024
Employment disputes Do employees get extra pay on a leap year day?

Every four years, many workers find themselves cramming an extra day of work into an already packed year. But are workers in the UK entitled to extra pay for this extra work?

February 2024
Employment disputes How Maternity, Adoption and Shared Parental Leave regulations are changing this year

In this Bitesized Edition, we look at the new Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations, set to come into force on 6 April 2024.

February 2024
Employment disputes 9 things employers need to know about apprenticeships

With National Apprenticeship Week here, we explain what employers need to consider regarding apprenticeship schemes and their legal obligations.

February 2024