Who is Protectd by Employment Law
Self-employed workers are not protected under employment law and are unprotected by the employer’s compulsory insurance against industrial injuries.
You will generally be an employee, and not self-employed, if the economic reality of the relationship is that you are not in business on your own account, or in ordinary language, ‘Are you your own boss?’
Unless you genuinely want to go into business on your own account, taking the risks inherent in such a practice, you should resist offers to become self-employed. Remember that even if your employer calls you self-employed and you are self-employed for tax and National Insurance purposes, you may be found to be an employee for the purposes of employment protection if you claim unfair dismissal or other statutory rights.
If you are supplied by an employment agency or business to do work for another company, you might still be an employee of that company rather than of the employment agency. Documents relating to your supply through the agency will be relevant to this question.
Under the Conduct of Employment Agencies and Employment Businesses Regulations 2003, the employment agency must specify your employment status, although this is not determinative should an Employment Tribunal later come to consider the issue.
Certain categories of worker are given employment protection rights although strictly they are not employees. For example:
You will generally be an employee, and not self-employed, if the economic reality of the relationship is that you are not in business on your own account, or in ordinary language, ‘Are you your own boss?’
Unless you genuinely want to go into business on your own account, taking the risks inherent in such a practice, you should resist offers to become self-employed. Remember that even if your employer calls you self-employed and you are self-employed for tax and National Insurance purposes, you may be found to be an employee for the purposes of employment protection if you claim unfair dismissal or other statutory rights.
If you are supplied by an employment agency or business to do work for another company, you might still be an employee of that company rather than of the employment agency. Documents relating to your supply through the agency will be relevant to this question.
Under the Conduct of Employment Agencies and Employment Businesses Regulations 2003, the employment agency must specify your employment status, although this is not determinative should an Employment Tribunal later come to consider the issue.
Certain categories of worker are given employment protection rights although strictly they are not employees. For example:
- Apprentices who enter into fixed-term contracts, which impose particular obligations upon the apprentice and the employer. There is a strict obligation to give and accept instruction in the trade and termination generally requires the apprentice’s parents’ consent.
- Civil servants, including some National Health Service workers, work under terms of service with the Crown and do not have contracts of employment. However, they are protected by employment law and where they are excluded they have their own arrangements, for example, in relation to redundancy pay.
- People who hold office may or may not be employees, depending on the nature of the relationship with their ‘employer’. Directors of companies, for example, may be office holders under company law and also be employees of their companies. Trade union officers hold office by virtue of their election in some cases, and are also employees of their union. Police officers hold office and are not employees, however, they are covered by discrimination laws.
- Home workers may or may not be employees, depending on the nature of their contract of employment or whether they are engaged in business on their own account (self-employed).
- Casual workers may be self-employed or employees only for the time when they are engaged in work, even though they continue to work day after day for the same employer and take on all the appearances of a regular employee. If you can establish that all your contracts as a casual worker are linked under an ‘umbrella’ contract, or that you have worked continuously for the same employer, you may be successful in establishing that you are an employee and therefore have rights under the legislation on which you intend to rely.
- Trainees on government training schemes may or may not be employees, depending on the type of scheme and the arrangements for pay, but are covered by health and safety and discrimination legislation.
- Volunteers may be able to show that they are employees, particularly if they are claiming that they have been discriminated against. Volunteers should not be put off seeking employment law advice in discrimination situations. Volunteers should gather all evidence of potential contractual obligations, including: Their volunteer contract, Any offer letter or other correspondence concerning their work, Any expenses forms and any handbooks or policies covering their work. They should also inform their advisor of their working hours, their job description and any training that was required in order to volunteer with the organisation concerned.
