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“Are you an employee, worker or are you self-
“What rights does a worker have?”
An employee is someone who has entered into works under a
contract of employment. In most cases it is obvious that a person
who carries out work under a contract is an employee. For example,
an offer letter will often state that the person is employed to work
for the business and sets out the terms of the employment and what
pay is being offered.
If there is a written Contract of Employment this will usually prove that the person is an employee.
The problem arises when there is no formal documentation in existence, or when there is a document which denies that the person who provides the work for pay is an employee.
Why does this matter?
It matters because an employee has more rights in law than a worker or contractor. If the employee has worked in the business for more than a year he has the right not to be unfairly dismissed. If this employment commenced before 6th April 2012. This extends to 2 years if this employment started on or after 6th April 2012. He also has the right to statutory notice and after 2 years he accrues the rights to a redundancy payment. Because of agency working and more flexible practices in industry, it is not always clear if a person who provides services is an employee or worker.
Let me give an example shows when this can be confusing: an agency advertises for staff to pack in a factory. The factory contracts with the agency to provide them with packers. The “worker” applies for the role and is interviewed by the agency and offered work at the factory. The management at the factory show the agency worker what to do and how to do it. At the end of the week the agency gives the worker pay with a wage slip and makes deductions for tax and National Insurance. In this case, if it is a short term contract it is likely that the worker will be a worker, and not an employee of the factory, unless the agency takes him on as their direct employee.
“Worker” is defined as “someone who performs personally any work or service for another party to the contract who is not a professional client of his”. An employee will always be a worker but a worker will not always be an employee. This is because of a legal concept called “mutuality of obligation”. Put simply, does A have an obligation to provide work for B? If so does A have an obligation to do that work? An agency worker may only get a call telling them there is 3 weeks work as a packer going for so much an hour. This is an offer of work but A does not have to give B the work and B does not have to accept the work. If either party can say “no”, then there is no “mutuality of obligation”, so B is not an employee.
For an employee the situation is different. If there is an agreement for A to provide
work to B permanently and for B to do the work, he is employed to do and B receives
a salary for it, B is an employee. If you are a worker because you are a Temp or
a casual worker, you do have certain rights, such as the right to accrue and receive
holiday pay. (If you think you should have been paid holiday pay and you have not
been, give us a call to discuss as you may be entitled to up to 6 years back-
The really complicated cases arise out of whether the worker is in fact self-
If you think you are not genuinely self-