Checking Your Employment Rights

Your ’employment status’ is your legal status at work. It affects what employment rights you’re entitled to.

There are 3 main types of employment status under employment law (Employment Rights Act 1996):

• Worker
• Employee
• Self-employed

Both employers and the people doing work for them need to know their rights and responsibilities, so it’s important to be sure of employment status.

You might have something in writing from the employer you work for that suggests what your employment status is. However, the way you and your employer work together in practice is ultimately what will determine your employment status for employment rights purposes.

Your employment status can be defined by

• How dependent you are on the employer for work
• How much control the employer has over you and your work
• Whether you’re expected to carry out the work yourself

Your employment status is important as it affects your legal rights, what you’re entitled to and what can be expected of you.

Employment status for tax purposes

Your employment status for tax purposes is not the same as your employment status for employment rights purposes. You can use HMRC’s employment status for tax tool to check your employment status for tax purposes.

Worker

You’re more likely to be classed as a worker if:

• Your work for your employer is more casual or ad hoc, for example your work is less structured or not regular
• You’re employed to do the work yourself
• You’re not offered regular or guaranteed hours by your employer
• You have very little obligation to make yourself available for work, but should do work you’ve agreed to

As a worker, you have rights including:

• Written terms (a ‘written statement of employment particulars’) outlining your job rights and responsibilities
• National Minimum Wage
• Paid holiday
• Payslips
• Protection for ‘whistleblowing’
• Protection against unlawful discrimination
• Not being treated unfairly if you work part time

You may also be entitled to Statutory Sick Pay (SSP), Shared Parental Pay, parental bereavement pay and maternity, paternity and adoption pay, provided you meet the eligibility criteria. As a worker, you are generally not entitled to SSP while on sick leave (as SSP is paid only to ‘employees’), paid maternity or other types of parental leave (which are available to ‘employees’ only), but you can take time off because you do not have to make yourself available for work.

As a worker you also have protection against experiencing any ‘detriment’ if you:

• Reasonably believe being at work or doing certain tasks would put you in serious and imminent danger
• Take reasonable steps over a health and safety issue, for example complaining about unsafe working conditions
• Inform your employer about your health and safety issue in an appropriate way

Detriment means your employer treats you in a way that leaves you worse off, for example:

• Your hours are reduced
• You experience bullying or harassment
• Your training requests are turned down without good reason

Workers could include:

• Casual workers
• Agency workers
• Freelance workers (however depending on your personal working pattern and circumstance you might be classed as a worker or self-employed)
• Zero hour contract workers (however depending on your personal working pattern and circumstances you might classed as a worker or an employee)

Employee

You’re more likely to be classed as an employee if:

• Your employer, manager or supervisor is in charge of your workload and how your work should be done
• You’re required to work regularly unless you’re on leave
• You can expect work to be consistently available
• You cannot refuse to do the work
• You’re employed to do the work yourself

Employees have all the rights that workers do, as well as extra rights and responsibilities, including:

• Parental leave and pay
• Shared Parental Leave and Pay
• Maternity, paternity and adoption leave and pay
• Parental bereavement leave and pay
• Time off for dependents
• Time off for public duties
• Redundancy pay after 2 years’ continuous service
• Being able to claim unfair dismissal after 2 years’ continuous service
• Getting the minimum notice period if dismissed or made redundant
• The right to flexible working requests after 26 weeks’ continuous service
• Protection against dismissal or suffering any detriment if taking action over a health and safety issue

As an employee, you also have protection against dismissal or experiencing any ‘detriment’ if you:

• Reasonably believe being at work or doing certain tasks would put you in serious and imminent danger
• Take reasonable steps over a health and safety issue
• Inform your employer about your health and safety issue in an appropriate way

You could have a case for automatically unfair dismissal if you’re dismissed in these circumstances.

Self-employed

You’re more likely to be classed as self-employed if you:

• are responsible for how and when you work
• are the owner of a company or are a freelancer
• invoice for your pay instead of getting a wage
• get contracts to provide services for clients
• are able to send someone else to do the work for you, if appropriate
• are able to work for different clients and charge different fees

If you’re self-employed you have some rights including:

• protection for your health and safety on a client’s premises
• protection against discrimination

You do not have the same rights and responsibilities as employees or workers.

Contractors and Freelancers

If you’re self-employed, or a worker or employee getting work through an agency, you might be given a contract for services and be called a contractor.
In this case you might have self-employed, worker or employee employment status and rights for the duration of the contract, so it’s a good idea to check.

It’s important to check the difference between being employed and being self-employed so both sides know their legal rights and responsibilities.

When your employment status is not clear

It might not be clear from the type of agreement you have or the nature of your working relationship whether you have worker or employee employment status.

For example, if you’re:

• Zero-hours staff
• Bank staff
• On a fixed-term or rolling contract
• A piece worker

If you’re in one of these types of work, it’s a good idea to check if your situation matches with one of the 3 types of employment status. This includes looking at how any written agreement or documents provided by the PA employer compares to the reality of your working relationship in practice.

For example, you might have a written contract which says you’re self-employed, but in reality have less control over how, when and whether you work, meaning you’re more likely to be a worker or an employee.

Next steps

Take a look at the resource available from ACAS on checking your employment rights to guide you in more detail.