SGS 1 Employee or Self-employed Consolidation
1. Definition of an employee An employee is defined as an individual who has entered into or works under
s.230(1) ERA and s.230(2) a contract of employment/service
Mention if there is a contract in place on the facts.
2. Applying the Ready Mix Go through the 4 steps and conclude after each step if on this basis the
Concrete test… individual is an employee or self-employed
3. Personal service test - Requires the individual to complete the work personally
- If they can send a substitute to complete the work at any time then it’s
unlikely to be an employee
- If they can send a substitute because the employee is unable to attend
i.e., illness and the choice is limited then they may be still be an employee
4. Control test - The employer must exercise some control over the individual
- The greater the level of control the more likely they are to be an employee
- Does the individual have the flexibility to work/how long they work/the
work they have to do?
- Does the company supply a uniform?
- Are there strict timelines/guidelines in place?
- Do they control how many hours of work? i.e., check hours
5. Mutuality of obligation test - Is there an obligation for the company to provide work and for the
individual to work when given it?
- Does the individual have the flexibility to accept/decline work?
(Carmichael case)
- Is the work casual? i.e., only paid for the work done
- Are there minimums/targets in place for any work carried out?
6. Other factors Integration factors: Is the individual part of the company?
- Does the individual attend team meetings?
- Does the individual have grievance and disciplinary procedures?
- Uniform? company email?
If not, then there is a lack of integration = self-employed status
Economic factors: Look at degree of financial risk of individual
- Does the company provide them with materials i.e., computers or do they
use their own?
- Can the individual work elsewhere?
- Do they receive PAYE or do they provide their own invoice?
- Do they receive holiday/sick pay?
- NI contributions/tax deducted = employee status?
7. Conclusion Decide whether the individual is an employee or self-employed on the facts
and explain briefly why you have reached that:
- due to a lack of mutuality of obligation (usually indicates they are self-
employed
- due to a lack of personal service
- due to a lack of control
- due to a lack of integration/economic factors
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, SGS 1 WTR - Working Time Regulations (POPULAR MCQ AND LONG FORM Q.)
1. Do the WTR apply? Reg 2 WTR
- Is the individual an employee?
- An employee is included in the definition of “worker” under WTR
- they only need to be a “worker” to get the benefit of WTR
- Therefore, the WTR do apply to X…
2. What particular issues Include statutory references and subsections
arise under the WTR?
Does an individual have sufficient annual leave i.e., for paid holiday?
Calculating leave A full-time worker is entitled to 5.6 weeks’ (28 days) paid annual leave. The
WTR intends that this is inclusive of entitlement to public holidays (of which
there are 8 in England and Wales).
A week’s leave for a full-time worker will be five days.
Pro-rata worker i.e., 3 days a week = entitled to 3 x 5.6 weeks which
amounts to 16.8 days’ annual leave.
The company can decide whether to round this number up to 17 days, but
it cannot round the number down to 16.
Issue for sufficient - A full-time worker is entitled to 5.6 weeks’ (or 28 days) paid annual leave in
annual leave (inc. each leave year: (Reg. 13 and Reg. 13A WTR).
leave of absence - Reg 13(1) - entitled to 4 weeks (20 days exc. bank holidays) + Reg 13(A) = 8
when sick) days bank holidays (x 1.6 days)
The case of Stringer v HMRC states that:
- entitlement to paid holiday does accrue whilst an employee is absent on
sick leave; BUT
- it is for the member states to decide whether workers may take their holiday
while they are on sick leave; AND
- after termination of the contract, workers are entitled to a compensatory
payment to reflect accrued but untaken holiday leave, even where the
worker was on sick leave for the full holiday year.
In summary:
- a worker on sick leave accrues annual leave despite not working
- allows workers to take paid statutory holiday during periods of long-term sick
leave.
- So, if you have accrued holiday during your sick leave, your entitlement to
statutory annual leave is unaffected by your absence
A worker does not actually have a statutory right to time off (paid or otherwise) on
any public holiday and whether a worker can be required to work on a public
holiday is a matter of contract. Check if the contract provides that their entitlement
includes paid time off on public holidays.
Can an employer pay a - Reg. 13(9)(b) states that leave may not be replaced by a payment in lieu
worker instead of their except upon termination. Therefore, the individual cannot be paid in lieu of
entitlement to annual taking annual leave whilst in employment with XYZ.
leave?
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,3. Remedies? - if you don’t have sufficient time to take off, ask to speak to
employer/negotiate
- if the employer doesn’t allow you to take off the time you’ve requested you
can bring a claim in the employment tribunal to seek a declaration and just
and equitable compensation (Reg. 30 WTR).
- Where a part-time worker works and misses all bank holidays Reg 5 Part
Time Regulations - employer must treat employee the same if there’s a
shortfall and work out their entitlement and if there’s a shortfall allow them to
take it at a later date
48 Hour Week
Issue The main issue is the maximum 48 hour working week (Regulation 4(1)).
Regulation 4(1) states that a worker should work no more than 48 hours per
week on average over a reference period of 17 weeks.
- Is the individual working more than 48 hours per week on average over a
period of 17 weeks?
o If they are working more than the statutory minimum, the
employer is potentially in breach of its obligations under the WTR
o may need further information as to whether the current working
pattern is likely to exceed the 17 week period
o If it is likely to continue, the employer will be in breach of the WTR
if it does not take all reasonable steps, in line with the need to
protect health and safety
- Are they ‘on call’? This may count towards working time
o (Only if they’re required to be at the office/physically on call) -
check for further information
Remedies/practical - Employee to sign an opt-out (if not already done) of Regulation 4(1) =
solutions most practical
- Reg 5 sets out the opt-out requirements:
o needs to be in writing
o needs to be voluntary
o can only opt out of Reg 4 (which is a limit) but you can’t opt out of the
other Regs
- for limits: speak to health and safety executive (HSE)
The employer should be aware that the 48-hour week is monitored by the Health
and Safety Executive (HSE) and/or local authorities (Regulation 28) and non-
compliance with the WTR to take reasonable steps to comply with the limits
or a prohibition or improvement notice issued by HSE under its powers under
Schedule 3 of the WTR (note to students: Schedule 3 is not in the statute book)
could lead to criminal sanctions under Regulation 29. Interestingly, where the
employer has required an individual to work in excess of the 48-hour limit,
Regulation 30 does not allow a worker to bring a claim in the employment tribunal
under the WTR, unlike the other entitlements to rest
Exceptions?
- Reg 20 unmeasured working time (Reg 4,10,11,12 wouldn’t apply)
- are they a senior manager?
- is it reasonable for them to work certain hours?
- what does their role actually entail?
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, Daily Rest
Issue The issue is the right of an individual to rest of 11 uninterrupted hours in each
24-hour period during which the individual works for their employer under
Regulation 10 (1).
- Check how many hours a day the individual works i.e. what time do they
finish and start the next day?
- If this does not allow for 11 hours daily rest there would be a prima facie
breach of the WTR.
- The employer must do all it can to ensure compliance with Regulation 10 for
those days when the employee works long hours
Remedies - could in theory bring a claim in the employment tribunal seeking a
declaration and just and equitable compensation (Regulations 30 (1) and (3),
WTR) to enforce his entitlement to rest breaks and periods but on the facts,
this seems unlikely as he appears happy with the way in which he is working.
- Note that employers must ensure that workers can take their rest periods but
they are not required to force them to.
Exceptions?
- Reg 20 unmeasured working time may apply (Reg 4,10,11,12 wouldn’t
apply)
- are they a senior manager?
- is it reasonable for them to work certain hours?
- what does their role actually entail?
Weekly Rest
Issue Entitled to a full rest period of 24 uninterrupted hours in each seven-day
period during which he works for his employer as required by Regulation 11(1).
Remedies - could in theory bring a claim in the employment tribunal seeking a
declaration and just and equitable compensation (Regulations 30 (1) and (3),
WTR) to enforce his entitlement to rest breaks and periods but on the facts,
this seems unlikely as he appears happy with the way in which he is working.
- Note that employers must ensure that workers can take their rest periods but
they are not required to force them to.
Exceptions?
- Reg 20 unmeasured working time may apply (Reg 4,10,11,12 wouldn’t
apply)
- are they a senior manager?
- is it reasonable for them to work certain hours?
- what does their role actually entail?
Rest Breaks
Issue Entitled to 20 minutes’ rest after six hours’ work (Regulation 12 (1) and (3)).
It is widely accepted that “rest” must be taken away from the workstation.
On this basis there would be a prima facie breach of the WTR and the employer
must do it all can to ensure compliance.
Remedies - could in theory bring a claim in the employment tribunal seeking a
declaration and just and equitable compensation (Regulations 30 (1) and (3),
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