Introduction
The NUJ deals
with many members who are unclear as to whether they have
any rights in relation to their employment because they
have been told that they are not employees.
The majority
of employment rights remain exclusive to those who are able
to satisfy the definition of an employee.
A new concept,
of 'worker', has been introduced in recent years as a result
of European legislation. If a person is able to establish
worker status then they will have certain rights with respect
to the national minimum wage, working time regulations and
part time workers prevention of discrimination regulations.
The right to be accompanied at disciplinary and grievance
hearings applies to workers.
Those who
are genuinely self-employed have limited employment rights
with respect to their trade union membership only.
In the employment
protection stakes, the gold medal position is held by those
who satisfy the definition of an employee. If a person can
show that he or she is an employee then they benefit from
many forms of employment protection.
The definition
of an employee in employment legislation is vague, to say
the least: 'employee means an individual who has entered
into or works under a contract of employment'. The Courts
have therefore devised a series of tests to ascertain whether
or not a person is an employee in order to overcome the
vagueness of the legislation. Over the years different tests
have evolved culminating in what is known as the 'mixed'
or 'multiple' test.
The test is
applied to the facts of the case, i.e. the court simply
examines the day-to-day relationship and how it functions
and decides whether the relationship is one of employer
and employee.
The Court
will apply a series of questions to the facts.
The Economic
Reality Test
Is the person
in business on his or her own account? Does he or she take
the ultimate risk of loss or profit? Such factors as provision
of own equipment, method of payment and entitlement to sick
pay are considered. Note that the more employers an individual
works for the less likely they are to be an employee of
any.
Further issues
to be considered are control, mutuality of obligation, the
intention of the parties, financial arrangements, the intention
of the parties and any other relevant issues.
Control
This looks
at how much control the employer exerts. Do certain hours
of work have to be complied with, is there supervision (a
line manager, for example), is the worker covered by disciplinary
procedures, is the worker prevented from working for the
competition and any other facts the Tribunal deems relevant.
Mutuality
of Obligation
This concept
was developed in the context of casual workers. The Courts
ruled that there must be an obligation on the employer to
provide work and on the employee to accept it. One of the
leading cases concerned waiters who worked at various catering
functions. They did not work continually but would be telephoned
and offered a particular job. The Court found that the employer
did not have to offer them the work nor did they have to
accept it. This meant they were not employees due to lack
of mutuality of obligation.
Intention
of the Parties
This will
often involve consideration of any written contracts that
are available. The label that the parties give to the relationship
may be overruled by the Courts but if there is a deliberate
arrangement to obtain tax benefits then that will be regarded
as strong evidence of the relationship - Massey v Crown
Life Insurance [1978].
Establishing
whether someone is an employee or not is a factual exercise
looking at the day-to-day workings of the relationship.
No one factor is conclusive on its own; it is more the cumulative
effect of all of the factors.
As stated
earlier, if a person is able to satisfy the definition of
an employee then they may benefit from certain employment
protections if they have been in employment for a certain
period of time. The right to take an unfair dismissal claim,
for example, arises after 12 months continuous service with
the employer.
Therefore,
establishing your status at work may sometimes be quite
difficult. This form has been designed to assist the NUJ's
lawyers. The information you provide here is important so
please take the time to ensure that it is accurate.
You should
complete the form as quickly as possible as time limits
will apply if a claim needs to be taken to an Employment
Tribunal. The majority of claims have a three-month time
limit which runs from the date of dismissal or the incident.
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