Worker, Employee, And Self-Employed – Do You Know Your Employment Rights?
The Law Of… Getting To Grips With Your Rights
Following the rise of, and controversy over, the gig economy in the UK more and more people have started challenging their employment status and are fighting to secure more workplace rights.
Joy Drummond, Solicitor specialising in Employment Law, explains why now, more than ever, it's crucial for anyone in employment to understand what rights you have and how the law can protect you.
There are various types of employment in the UK, including:
- Part-time worker
- Agency worker
- Casual worker
- Seasonal worker
- Zero-hours worker
It's important to remember that there are different pieces of legislation, such as the Employment Rights Act 1996, the Working Time Regulations 1998, and the Equality Act 2010, which each give different types of workers different employment rights under different definitions.
To claim unfair dismissal, a redundancy payment, and maternity and parental leave under the Employment Rights Act 1996 (ERA) you have to be an employee, which is defined as "an individual who has entered into work or works under (or, where the employment has ceased worked under) a contract of service (or apprenticeship)."
How Do I Know If I'm An Employee?
A key difference is that employees work under a contract of employment (in contrast to workers who work under a contract for services).
For there to be a contract of employment, there must be an agreement between an employer and employee – this can either be verbal or in writing.
As soon as you accept an offer of employment, a contract begins. Once you start work, this shows that you have accepted the terms that your employer has offered to you.
There is no one definitive rule to decide whether you are an employee but generally as an employee, you are responsible for doing the work that your employer assigns to you personally, and your employer is obliged to provide you with regular work.
You are also:
- Required to work on a regular basis, unless you are on any form of leave from work – such as annual or maternity leave
- Have to do a minimum number of working hours, which you are paid for
- Have your workload organised and monitored by a manager or supervisor
- Pay tax under PAYE and National Insurance contributions
- Can join your employer's pension scheme
- Are subject to your employer's disciplinary and grievance procedures
- Must work at a location specified by your employer
- Use equipment and tools required for your job that have been provided by your employer
What Rights Do Employees Have?
Employees are entitled to a range of rights such as:
- The right to claim unfair dismissal (after 2 years' service)
- A written statement of employment
- An itemised pay slip
- The National Minimum Wage
- Holiday pay
- Statutory Sick Pay (SSP)
- Statutory redundancy pay
- Statutory maternity, paternity, and adoption leave and pay as well as Shared Parental Leave (SPL) and Statutory Shared Parental Pay (ShPP)
- Minimum notice periods if your contract of employment is coming to an end
- The right to make a request for flexible working
- Time off work to deal with emergencies
The Employment Rights Act 1996 defines 'worker' as an individual who works under (or has worked under) "a contract of employment or any other contract" in which they "do or perform personally any work or services" for someone else, and not a customer of the individual's business.
The definition of 'employment' for claiming discrimination under the Equality Act 2010, is someone who is working "under a contract of employment, a contract of apprenticeship or a contract personally to do work" (which is similar to the definition of 'worker' under the ERA).
The dividing line between an employee and a worker is not a clear one. The requirement to do the work personally and the obligation to work are similar, but the bar is higher for employees. Where an individual fails to meet the test for being an employee they may qualify as a worker.
Workers generally include those who are:
- Agency workers
- Casual workers
- Seasonal workers
- Zero-hours workers
If you're a worker, you'll:
- Have a contract of employment or another form of contract where you carry out services for a reward – note that your contract can be in writing or a verbal agreement
- Perform certain tasks for money or another type of benefit – such as being given future work
- Have only a limited right to subcontract the work to someone else on your behalf
- Be obligated to attend work and your employer has to provide work for you to do for the duration of your contract or agreement
What Rights Do Workers Have?
Workers have fewer employment rights in comparison to employees, but they are entitled to the following:
- Unlawful wage deductions
- The National Minimum Wage
- Holiday pay
- The right to not be treated less favourably if you work part-time
- Rest breaks (the statutory minimum length)
- The right to not work more than 48 hours per week if you choose to opt out of this
- Protection from discrimination, and from detriment due to whistleblowing
Workers might also be eligible for Shared Parental Leave (SPL), Statutory Shared Parental Pay (ShPP), and Statutory Sick Pay (SSP).
Which Rights Are Workers Not Entitled To?
Some of the rights that workers don't have include:
- Minimum notice periods if your employment is ending
- Protection from unfair dismissal
- The right to ask for flexible working
- Time off work in the event of an emergency
- Statutory redundancy pay
Part-time workers are protected by the Working Time Regulations. They are also protected under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 from being treated less favourably than a comparable full-time worker by their employer and should be treated the same as full-time employees when it comes to:
- Rates of pay (this includes sick, maternity, paternity, and adoption leave and pay)
- Annual leave
- Career progression (training and development)
- Being considered for a promotion, transfer, or redundancy
- The chance to have career breaks
Keep in mind that some of the benefits that you might have access to, such as bonuses, might be calculated and applied pro rata by your employer.
If you think that your employer has treated you less favourably, it's a good idea to have a chat with your manager, HR department, or trade union representative about this first.
If you're unhappy with the outcome and would like to know what your legal options are, Joy Drummond or another member of our Employment Law team can offer you advice and guidance on 0808 129 3320.
If you're self-employed, you're viewed as running your own business and will usually be contracted by different clients to provide certain services. Each contract you have with your clients will set out your role and the tasks that you're expected to perform.
As self-employed individuals are seen as being their own boss, the only rights you have include:
- Health and safety protection when you're on your client's premises
- Protection against discrimination, in some situations
How Can Simpson Millar's Employment Law Solicitors Help Me?
As your employment status determines which rights you have, it's important to find out where you stand as soon as possible, especially if you're considering legal action.
Whether you're challenging a decision made by your employer, making a claim for unfair dismissal, or believe that your employer has discriminated against you, we can provide advice on your legal rights and identify the right option for your circumstances.
As specialist solicitors in employment law, we're also experienced in advising and representing all levels of employees at employment tribunals, and will help you fight for the best outcome.