EMPLOYMENT STATUS AND EMPLOYMENT REGS 3. Look at all factors: Does the individual:
* Take a financial risk?
* Profit from task management?
EMPLOYMENT STATUS: * Get paid through PAYE or send out invoices?
* Hire helpers?
Employment status – Three types * Provide materials and equipment? Company
Employees Workers Independent stationery?
contractors * Disciplinary/grievance procedure, paid holiday/sick
Work under a Work under a contract of (self-employed) pay?
contract of service service * Wear a company uniform?
Work under a * Attending social events, training sessions?
Benefit from all Employees are also contract for * Allowed to work from home?
statutory workers but those workers services.
protection who are not employees 4. Is employee/worker and agency worker?
won’t benefit from No benefit from If the employee/worker works through an agency whereby
statutory protection statutory employer contracted with the agency rather than the
protection. employee/worker directly, it is difficult to establish whether
Cannot claim unfair they are a worker/employee of the employer since they may
dismissal. have no contract with the employer at all.
In this case, use the test of necessity to see if a contract could
Definition of employee: be implied between the agency worker and employer. – Is it
necessary for a contract to be implied in this case?
You will want to see if the individual in question is an employee, and if
so, he will benefit from all statutory protection. AGENCY REGULATIONS:
s.230(1) Employment Rights Act 1996 (ERA) Employee = person who has
entered into a contract of employment. Reg. 3 Agency Workers Regs 2010 (AWR) Agency worker = person
s.230(2) Employee works under a contract of service, which will be his supplied by a temp work agency to work temporarily for user and has
employment contract. either an employment contract or another contract to perform services
Always check if there is a contract. What does it say? Employee or self- personally for the agency.
employed? Note down but whether employee or not will ultimately
depend on the below tests. Reg. 5 Agency workers are entitled to the same basic conditions as a
comparable employee and any contract terms which would be included
The common law test: in the contract of a comparable employee.
Reg. 6 Lists relevant terms and conditions for an agency worker’s
Ready Mixed Concrete Criteria: employment contract.
1. Personal service test Reg. 7 This won’t apply if agency worker has less than 12 weeks of
2. Control test continuous employment with the employer.
3. Mutuality of obligations
4. Other factors: economic reality and integration Reg. 12-13 Agency worker must be able to access employer’s facilities
and amenities from their first day, eg. canteen.
Hall v Lorimer The above criteria is not a mechanical exercise, allow a
‘picture to be painted’ and note that not all factors are of equal weight. Reg. 17 Agency worker is able to bring a claim for unfair dismissal.
– eg. Mutuality of obligations will be a higher priority. Reg. 17 para 3 Grounds for an unfair dismissal claim brought by an
agency worker: The agency worker was dismissed as a result of being
Personal service test: subjected to detriment because the worker:
Is work performed personally and in return for pay? 1. brought proceedings under these Regs,
2. gave evidence or info in connection with such proceedings,
Less likely to be an employee if: 3. did anything under these Regs to a temporary work agency,
Ready Mixed Concrete If there is a substitution clause allowing the hirer or any other person,
employee/worker to send someone else to carry out work. 4. alleged that the agency or hirer breached these Regs or
5. Refused/proposed to refuse to forgo a right conferred by these
More likely to be an employee if: Regs.
Pimlico Plumbers Personal performance is dominant feature in the
contract. Reg. 18 Agency worker is able to bring a claim to the Employment
MacFarlane The power to substitute with another person is limited. Tribunal for a breach of these Regs.
Staffordshire Sentinel Employee/worker must give reasons to send
substitute person to carry out work. If claiming under Reg 12 or 13 – make claim against employer.
If claiming under Reg 5 – make claim against employer and/or agency.
Control test:
Employer has control over how, where and when work is carried out. Zero Hour contracts:
s.153 Small business, Enterprise and Employment Act 2015 (SBEEA)
Less likely to be an employee if: Exclusivity clauses in these contracts are banned.
Only 1 day’s notice for holiday s.27A(3) ERA If a zero-hour contract provision also prohibits the agency
workers from working for another (either with or without employer’s
More likely to be an employee if: consent), the provision is unenforceable.
There is a clocking-in system, must work 40 hours per week, can
work from home but must inform manager, must reach targets, Uber BV v Aslam Uber drivers are classes as workers and are working
must attend team meetings, must request holiday when they have their app switched on and are ready to accept trips.
I As workers they are entitled to a limited number of employment rights
The more control that are not available to the self-employed, including paid holiday and
The more likely to be an employee minimum wage.
Mutuality of obligations – high priority**: WORKING TIME REGULATIONS:
Carmichael and National Power Is there an obligation to provide work
and to perform work? - Eg. must accept work when offered. Working Time Regulations - Structure:
1. Does WTR Apply?
More likely to be an employee if: 2. Issues and breach and further info we require
Employee/worker has not worked elsewhere and/or has been 3. Remedies
provided with work continuously for years 4. Practical solutions
Other factors - Economic reality and integration test: Does the WTR apply?
1. How do the parties describe their relationship?
Autoclenz Ltd Look at the reality of the relationship, not the Reg. 2 Worker = employees who are providing personal service to
label in the contract. employer – must be more than a client/customer relationship.
2. How much is the employee/worker integrated into the Employees are included in the definition of a worker.
company? Do they wear a uniform? Are they entitled to Mahendra is an employee. Thus, the WTR applies to him.
holiday pay, pension, take part in staff training, have access
to a company email?
Employment – Revision notes | Page 1 of 20
, Issue and breach: Practical Solutions:
Max. 48 hour working week: 48 hour work week:
Reg. 4(1) A worker should work no more than 48 hours per week. Reg. 4(1) Worker should sign an opt-out. Must be voluntary + in
Employers must take reasonable steps to ensure compliance. writing.
Reg. 5 But worker may terminate opt out by giving 7 days’ written
Please note: worker can opt out in writing. notice.
Reg. 20 Employer might be able to claim that C is an autonomous
Being ‘on call’: If worker is required to be present in the office when ‘on decision-maker, in which case, Regs 4(1) and (2), 6(1), (2) and (7),
call’, that would count towards his working time. If he is not required 10(1), 11(1) and (2) and 12 don’t apply.
to be in the offices, then this would not count.
In roles where you have to travel, time spent travelling amounts to
working time. Eg. travelling between homes for care assistants who
care for patients in their homes and must visit more than one per day.
Daily rest:
Reg. 10(1) Worker has right to rest of 11 uninterrupted hours in each
24 hour period during which he works for his employer. Employer must
do all it can to ensure compliance - need not force worker to take rest.
Weekly rest:
Reg. 11(1) Worker has right to full rest of 24 uninterrupted hours in
each 7-day period during which he works for his employer.
OR
Reg. 11(2) Employer can determine to instead provide:
1. 2 uninterrupted rest periods, min. 24 hours each within 14 days
or
2. 1 uninterrupted rest period of min. 48 hours within 14 days
Rest breaks:
Reg. 12(1)-(3) Workers have a right to take a 20 minutes’ rest after 6
hours’ work. “Rest” should be taken away from the workstation. – eg.
should not eat at his desk.
Employer must do all it can to ensure compliance but cannot force
worker.
Reg. 6 Night workers should not work more than 8 hours in every 24
hours during any 17-week period.
Reg. 2 Night worker = person who on the majority of days on which he
works, works during the night for at least 3 hours.
To assign night work to a worker, employer must carry out a health
assessment.
Annual leave: *POPULAR MCQ*
Reg. 13 and 13A A worker is entitled to 5.6 weeks’ (or 28 days) paid
annual leave in each leave year.
Stringer v HMRC Worker on sick leave still accrues annual leave. If
worker has been off the whole year due to sick leave, they can carry
annual leave over for 18 months.
Reg. 13(9)(b) Leave cannot be replaced by payment in lieu except upon
termination.
If worker falls ill before or during annual leave, worker can request a
replacement period for annual leave.
Calculate entitlement:
A worker does not have a statutory right to time off (paid or
otherwise) on public holidays. Therefore, deduct 8 days for public
holidays from the 28 days. 20 days remaining to take during the
leave year. Deduct any days taken already.
Calculate part-time entitlement:
Pro-rata equivalent of WTR annual leave to the full-time worker.
Works 3 days: 3 days for 5 days. Entitlement: 3 x days which
amounts to 16.8 days’ annual leave. Employer can round this
number up to 17 days, but it cannot round the number down to 16.
Remedies:
Remedies for breach of Reg. 4:
Reg. 28 Apply to Health and Safety Executive for enforcement notices.
Reg. 29 Non-compliance could lead to criminal sanctions.
Reg. 30(1) and (3) Worker can bring a claim in ET for compensation +
declaration.
Remedies for breach of Reg. 10, 11 and 12:
Reg. 30(1) and (3) Worker can bring a claim in ET for compensation +
declaration. – No, if worker appears happy with the way in which he is
working.
Exceptions:
1. Reg. 20 Unmeasured working time applies to senior
employees: these employees likely determine themselves
when they do their work and for how long. If Reg. 20 applies,
then Regs. 4, 10, 11 and 12 will not apply
2. Reg. 21 The regulations don’t apply to certain professions.
Annual leave:
Reg. 30(1) and (3) Worker can bring a claim in ET for compensation +
declaration.
Employment – Revision notes | Page 2 of 20
