Different Types Of Workers And Their Rights

It can be difficult to ascertain what type of worker you are, however, this is very important to establish as it can significantly impact the rights you have and any potential claims you may have against your employer. There are three types of workers as detailed below:

1. Employee
2. Worker
3. Self-employed

Employee

The Employment Rights Act 1996 defines Employee as ‘an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment’. This is of course not a particularly helpful definition.

It is important to note at this stage that an employment contract can be express or implied and can be oral or in writing.

Rights of employees include the rights given to workers (below), plus:

• Parental Leave and pay
• Minimum notice period
• Time off for dependents
• Time off for public duties
• Shared parental leave and pay
• Parental bereavement leave and pay
• Redundancy pay (after 2 years service)
• Maternity, paternity and adoption leave and pay
• Ability to claim for unfair dismissal (after 2 years service)
• Ability to request flexible working (after 26 weeks service)
• Protection against dismissal or detriment due to a health and safety issue

This is the highest level of rights available. Owing to the unhelpful description of employee in the legislation, the courts have created several tests to ascertain whether someone might be considered to be an employee. This predominantly comes down to how much power the employer has over the employee, and what requirements there are on the employer. Some key questions to ask include:

• Are there mutual obligations between the parties? (is the employer required to provide work and the employee required to accept work)
• Does the employer exercise control over the work that is done (this would include what work is done, where it is done, when it is done and how it is done)
• Are other provisions of the contract consistent with an employment relationship? In deciding this the courts will look holistically at the whole employment relationship.

Worker

The Act defines Worker as

‘(a) contract of employment; or

(b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual.’

It can be difficult to ascertain the difference between a worker and employee and it is important to note that all employees and workers, but not all workers are employees.

Rights of workers can include the following:

• Payslips
• Paid holiday
• National Minimum Wage
• Protection for whistleblowing
• Unfair treatment for part time work
• Written terms of employment rights and responsibilities
• Protection against unlawful discrimination

A worker is effectively a hybrid status putting the person between self employed and employed. They can include zero hours contracts (where employers are not required to provide specific hours or any hours at all and the worker is not required to accept any hours that are offered) and quite often, agency workers also fall within this bracket.

Self Employed

There are very limited rights for the self-employed and the definition of worker expressly excludes those who carry out work or services for another party whose status is: ‘that of a client or customer of any profession or business undertaking carried on by the individual’.

Rights include:

• Protection against discrimination
• Protection for health and safety on the premises of a client

A self employed person will have unlimited control over the work they do. They will get to choose whether to accept the work, whether they will do it personally, or whether they can elect someone else to do it for them and when and how the work is done. They will also take on the financial risk of the work, if the work is not done or someone refuses to pay for it, it is the individual who will face the consequences of this and not a wider organisation.

The current statuses of employment have been under much scrutiny by the courts recently. There is an argument that they are not fit for the current state of the work force. The rise of the “gig economy” has led to many cases appearing before the courts, most notably, Uber and Deliveroo and there has been an independent government review commissioned that has requested an overhaul of the current system, although, so far no change has been made.