Tag: Employment Law

HR Health Check

Posted on by @deliver_els

How healthy is your business? To find out, answer these simple questions below.

1. Do all your employees have a written contract of employment? Y/N
2. Are these contracts of employment issued within the first 8 weeks of their employment commencing? Y/N
3. Do you have job descriptions for all roles within the organisation? Y/N
4. Do you check that all employees have the right to work in the UK? Y/N
5. Do you have a staff handbook? Y/N
6. Do you have written disciplinary and grievance procedures? Y/N
7. Do your policies and procedures comply with employment legislation? Y/N
8. Do you have a probationary period for new hires? Y/N
9. Do you know the 5 reasons for a fair dismissal? Y/N
10. Do you have a clear procedure for dealing with absence? Y/N

Answers

If you answered yes to under 5 questions, you are at high risk and should take immediate action.

If you answered yes to under 10 questions, you are at moderate risk, there is room for improvement in this instance.

If you answered yes to 10 and more questions, well done! You are at low risk – your HR essentials seem to be in place.

How can Employment Law Services (ELS) Help?

If you are an employer who requires assistance with any of the issues raised in this blog contact us today for your free consultation 0370 218 5662.

 

Handing notice in to a job is not always a letter of resignation

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A letter that sets out one months’ notice should not be automatically assumed as a letter of resignation, an EAT Judge has confirmed.

In the case of East Kent Hospitals University NHS Foundation Trust v Levy, Judge Jennifer Eady dismissed the appeal and confirmed the tribunals earlier decision that the employee had in fact been unfairly dismissed.

In this case, the employee was offered a new role in the radiology department, as a result of this she submitted a letter to her line manager giving “one months’ notice”.

After the claimant had become unhappy in her current position, she successfully applied for a role in the radiology department – on June 10, 2016 – subject to pre-engagement checks.

Her letter to her manager, Gorton Davey read: “Please accept one month’s notice from the above date”.
On the same day, her manager responded saying: “Thank you for your letter… in which you tendered your notice of resignation. I can confirm that your last day of work within Health Records will be 8th July 2016. I would like to take this opportunity in thanking you for your hard work, dedication and contributions to a highly successful team over the years, and I wish you every success with your future employment.”

However, on 16th June, the claimants new job offering was retracted on the grounds of her poor attendance record. Because of this, Levy attempted to withdraw her notice, but her manager refused and wrote to her to confirm the date of termination, addressed the issue of outstanding holiday entitlement and filled out an employee termination form.

Mr Gorton-Davey wrote: “It is with regret that I cannot accept your request and as a result, your last day of work with us will be on Sunday, 10 July 2016. I also need to inform you that due to the number of days annual leave taken already this financial year, the Trust will be looking to recover 88 hours pay from you”.

As a consequence of this, Levy brought a claim of unfair dismissal against her employers. In April 2017, the Employment Tribunal held in favour of the claimant and held that her employers had unfairly dismissed her.

Her employers responded arguing that the wording used by Levy in her letter of notice was unambiguous. The Employment Tribunal rejected this response and said the letter could have been either a notice of intended transfer or a notice of termination. Stating that the employees’ letter would lead a reasonable observer to agree that the claimant was not ending her employment but simply making her manager aware that she intended to accept the offer.

The Tribunal also took into consideration the conditions of the claimant’s letter in that she was unaware that her employment history had potential to affect the conditional offer and that she needed to work to support herself and her family.

East Kent Hospitals University NHS Foundation Trust appealed and failed. At the EAT, Judge Eady expressed: “…once it became apparent that the offer of a position in the Radiology Department had been withdrawn, and the claimant was seeking to withdraw her notice of departure from Records, the respondent’s position was that the claimant’s employment must come to an end.

“Given its findings of fact, however, I do not consider the [employment tribunal] erred in finding that this, in context, amounted to a dismissal and not simply the acceptance of a resignation.”

Employer considerations

It is important to note, that the events in this case are rare. However, the circumstances of this case should serve a reminder to all employers to ensure a clear understanding when an employee resigns or offers to give notice of resignation. Employers should attempt to understand why the employee is resigning, the notice they intend to serve and clarify when the employment relationship will terminate.

How can Employment Law Services (ELS) help?

If you are an employer who requires assistance with any of the issues raised in this blog contact us today for your free consultation 0370 218 5662.

Top 5 Employment Law Questions of August 2018

Posted on by @deliver_els

1. When is it permissible for an employer to terminate the contract of employment of an employee on the grounds of ill health?

Dismissing an employee on the grounds of ill health is anything but straight forward. Lack of capability, including when assessed with reference to health can be viewed as a potentially fair reason for dismissal under s98 of the Employment Rights Act 1996.

Assuming the employer can provide enough evidence that capability is the reason behind the dismissal, it must then be followed with a fair procedure.

Over the years, case law has established 4 main elements that constitute a fair procedure, these include:

• Consultation with the employee
• A medical investigation
• Consideration of alternative employment
• Possible ill health early retirement if there is provision for this

2. What records relating to statutory maternity pay must an employer keep?

An employer must keep the following information on each employee who receives statutory maternity pay:

• The medical certificate (MAT B1) or other evidence relating to the pregnancy that has been provided by the employee
• A record of intended dates of leave advised by the employee and the date the maternity leave officially commenced, if circumstances change
• A record of weeks that SMP was paid and the amount paid each week
• A note of any weeks in the maternity pay period for which SMP was not paid and the reasons why

3. If an employee wishes to resign after disciplinary proceedings have commenced, should the employer continue the disciplinary proceedings?

If the employee’s resignation is with immediate effect, then his or her employment will terminate. There would then be nothing to gain in continuing disciplinary proceedings without the employee who is no longer employed. However, it is important that employers store the disciplinary information for up to one year following the employee’s resignation. This information will be of great use should the employee attempt to claim constructive dismissal or unlawful discrimination following the disciplinary proceedings.

4. What will happen to EU employees after Brexit?

The rules on free movement and immigration in the UK still remain unclear. This topic has been a fundamental issue of the negotiations held between the UK and the EU.

On 8 December 2017, the UK Government announced it had come to an agreement with the EU on citizens’ rights. Following this, a further agreement was reached on the terms of the implementation period. The agreement named “Settled and pre-settled status for EU Citizens and their families” is not yet law and will be subject to change depending on the final outcome of the negotiations.

The Government have implied that there will be an implementation period, which is due to commence on 29 March 2019 (the withdrawal date) and will terminate on 31 December 2020. Under this agreement, EU nationals residing in the UK before 31 2020 will meet the criteria for settled status when they have been a UK resident for 5 years. This will give them the right to work and live in the UK without a fixed time limit.

EU nationals who do not have 5 years continuous residency will be permitted to apply for a permit, which will grant them the right to remain until they reach the 5-year mark, at this point they will be able to apply for settled status.

Those who arrive in the UK throughout the implementation period will be required to register their residency if they stay for longer than 3 months.

5. Can employers still operate childcare voucher schemes following the introduction of tax-free childcare?

Yes, employers can still operate a childcare voucher scheme. However, it is important to note that new entrants will not be eligible to join the scheme from 4 October 2018.

The Government had initially announced that the scheme would end 5 April 2018. However, it was extended by 6 months in March 2018. Employees will continue to reap benefits from an existing childcare voucher scheme, as long as they continue as employees of the employer and that employer continues to offer the scheme.

How can Employment Law Services (ELS) help?

If you are an employer who requires assistance with any of the issues raised in this blog contact us today for your free consultation 0370 218 5662.

Discrimination because of religion or belief

Posted on by @deliver_els

All employers should already be aware that treating an employee differently because they are Muslim, Jewish, Christian, black, white etc can result in legal action. But, can you be accused of discriminating against another person’s philosophical belief’s?

“Religious or philosophical belief” is one of the 9 protected characteristics under the Equality Act 2010. And unlike the rest, it can be a difficult one to define. As a result of this, the Employment Tribunal has heard many interesting complaints over the years from disgruntled employees arguing that their beliefs should be protected.

Cases from the past have established that various belief systems may be afforded protection under legislation. This came after the Tribunal held that beliefs in climate change, Rastafarianism and anti-hunting should be protected. Since then, it has been extended further to protect beliefs in higher purposes of public-service broadcasting as well as mediums and their ability to contact the dead.

Yet, there have also been some memorable failures in the system when establishing that a belief meets the foundations for discrimination protection.

For example, a belief that the terrorist attacks of 9/11 and 7/7 were authorised by the British and American Governments and that there was a worldwide media conspiracy, failed on the grounds that upon objective scrutiny, such beliefs were “absurd” and not cogent.

As well as this, a belief that people should wear a remembrance poppy from 2nd November until remembrance Sunday, was not enough to be considered as weighty and substantial to qualify.

Furthermore, the objection made to same-sex couples adopting children was held as a mere opinion and not a philosophical belief.

This blog should help guide employers through this legal minefield.

Discrimination defined

Direct Discrimination

Direct discrimination occurs when a person is treated less favourably than another person because of a protected characteristic they have or are thought to have.

Discrimination by association

This is applied to age, race, religion or belief, sexual orientation, disability, gender reassignment and sex.

Perception discrimination

Applies to age, race, religion or belief, sexual orientation, disability, gender reassignment, and sex. This is direct discrimination against an individual because others think they possess a particular protected characteristic. It applies even if the person does not actually possess that characteristic.

Indirect discrimination

Applies to age, race, religion or belief, sex, sexual orientation, marriage and civil partnership, disability and gender reassignment. Indirect discrimination can occur when you have a condition, rule, policy or even a practice in your company that applies to everyone but particularly disadvantages people who share a protected characteristic. Indirect discrimination can be justified if you can show that you acted reasonably in managing your business, i.e. that it is “a proportionate means of achieving a legitimate aim”

What amounts to a philosophical belief under the Equality Act 2010?

In the case of Grainger PLC v Nicholson, the Employment Tribunal set out 5 aspects on how to recognise a philosophical belief and concluded that the belief should be:

• Genuinely held;
• A belief and not just an opinion;
• A belief as to a weighty and substantial aspect of human life and behaviour;
• Sufficiently cogent, serious, cohesive and important;
• A belief that is worth of respect in a democratic society and compatible with human dignity and the fundamental rights of others.

Employer considerations

Most employers will already know that they have a duty to prevent discrimination in the workplace. Failure to do so can be costly and result in increased employee turnover and absenteeism, lower employee morale and productivity and high insurance costs.

Employers should take action to prevent discrimination from occurring in the first place. To achieve this, we advise you take the following steps:

(1) Familiarise yourself with all anti-discrimination laws;
(2) Develop and roll out a diverse anti-discrimination policy;
(3) Ensure all staff are sufficiently trained on anti-discrimination;
(4) Be ready to investigate complaints of discrimination or harassment;
(5) Examine all business decisions for unintentional discrimination.

How can Employment Law Services (ELS) help?

If you are an employer who requires assistance with any of the issues raised in this blog contact us today for your free consultation 0370 218 5662.

Employee Onboarding – 5 Best Practices to Improve Retention

Posted on by @deliver_els

What is an onboarding process?

Onboarding is the procedure an employer should use to help a new employee acquire the knowledge and skills needed to become a successful member of the team. Onboarding should cover the following steps:

• Preparations prior to the start date;
• An introduction to tools used;
• Orientation of the office culture;
• A chance to meet the rest of the team;
• An evaluation of the full process afterwards.

Why is employee onboarding important?

SME business owners should view onboarding as an opportunity to ensure all new starts hit the ground running and grow to become loyal satisfied members of the team.

After all, you put a lot of management time and effort into finding the perfect candidate for the job. So, you should not stop there, employers should then put as much effort into ensuring that their new employee succeeds in their new position.

Communicate often and before the employment begins

Once you have selected the right candidate for the job, and before the employment commences, there are a few steps you can take to ensure the onboarding process runs smoothly and successful:

(1) Get the employees personal information; for example, the candidates name, title, national insurance number, proof of right to work in the UK etc;
(2) Notify all relevant departments; inform your HR support, payroll, IT and anyone else that may need the new employee’s personal details. Ensure that you follow up with all relevant departments and confirm they are prepared ahead of time for the new arrival.

It is advised that employers begin the welcome process before the employee arrives. The more information that your new employee has on your company and your plan for their first few weeks, the less nervous they will be on their first day. Before an employee starts, they should be aware of the following pieces of information:

(1) The companies dress code;
(2) Office hours;
(3) What time they should arrive on their first day;
(4) The schedule for their first week.

Introduce them to the team

Generally, the first day of employment will be filled with training and paperwork. If this is the case, you are missing the chance to really welcome someone to your team. Employers should:

(1) Give the new employee a proper tour of the office;
(2) Introduce the new employee to their colleagues (remember it is not easy being the new kid at school);
(3) Ensure their workspace is stocked, organised and ready for use.

Once the employment has started – set achievable goals

Give your new employee direction and realistic goals right from the offset. By setting easy-to-reach goals, your new employee will find instant success and feel motivated about their decision to join your business.

Explain the companies long term goals

You should explain to the new employee your future goals and vision for the company and let them know where they fit in that picture. Making your employee aware of their role in the company’s long-term goals will provide them with job security and an understanding of the mission that you and your team are working to achieve.

Arrange one-to-one time each week

At Employment Law Services (ELS), we recommend that employers put aside 10-15 minutes each week for the first 2-3 months of a new employee’s employment. This will keep you informed of any potential challenges they may be facing and provide you both with some time to stay connected and engaged and provide each other with feedback.

Employer considerations

Implementing a thorough and consisted onboarding plan takes time and effort. There are a few critical errors that employers should recognise and attempt to avoid ensuring a new employees induction period runs smoothly.

(1) Avoid overloading a new employee with too much information too soon; the first few weeks in a new job can be daunting for any employee. Therefore, you do not want to give them excessive amounts of work before they are ready.
(2) Don’t assume new employees will understand everything right away; it is important that employers remember that even new employees with lots of industry experience should be given the opportunity to properly digest any additional information they are given.
(3) Don’t forget to evaluate the full process; measuring the outcome of your onboarding process should be the key to improving it. Assess your metrics and take note of any improvements you find in employee performance, increased retention and time to proficiency. Once you have the answers to this, you should consider how to improve the value of a better onboarded employee.

How can Employment Law Services (ELS) help?

It’s all very well having an employee who is qualified and experienced for the job, but if you want to get the most out of that employee an efficient onboarding process is key. If you are an employer who has any issues or concerns about the topics raised in this blog, give us a call today for your free consultation: 0370 218 5662.

Time off for dependants: advice for employers

Posted on by @deliver_els

From the first day of employment all employees have the right to time off to care for a dependant. Under s57a and s57b of the Employment Rights Act, all employees are entitled to a “reasonable” amount of unpaid leave. However, what is deemed as reasonable can be fact specific.

Who is a dependant?
A dependant is someone who relies on the employee for care, which can vary from a spouse, partner, child, parent or someone who depends on the employee, for example an elderly neighbour.

When can time off be taken?
• When a dependant falls ill, gives birth, is injured or assaulted;
• To make care arrangements for a dependant who has fallen ill or is injured;
• In consequence of the death of a dependant;
• To deal with an incident that concerns a child of the employee whilst in care of an educational establishment.

How much time off can an employee take?
An employee will be entitled to a reasonable amount of time off to deal with the emergency, but there is no set amount of time as it depends on the situation.
For example, if a dependant falls ill, an employee can take time off to take that child to the doctors and make care arrangements. An employer may then ask the employee to take parental or annual leave if they wished to stay off with the child for longer.

Does the employee have to give notice?
The employee does not need to give notice; however, they should provide the employer with a reason for the absence as early as possible and when they anticipate their return to work.

Should the employee be paid for this time off?
No, an employer does not have a statutory obligation to pay employees for time off to care for dependants.

An employer must not:
• Treat employees unfairly for taking time off, for example refusing them training or promotion;
• Dismiss an employee or choose them for redundancy because they asked for time off for a dependant;
• Refuse an employee reasonable time off.

How can Employment Law Services (ELS) help?
If you are an employer who requires assistance with any of the issues raised in this blog contact us today for your free consultation 0370 218 5662.

Employment Law Quiz

Posted on by @deliver_els

Employment legislation covers all areas of day-day business activities. This includes what employers can and cannot do in regard to employment contracts, recruitment, wages, dismissals, employee rights and working hours.

All employers – no matter what size – must ensure they comply with UK employment legislation, failure to do so can expose your business to costly employment tribunal claims. Test your knowledge here (answers at the bottom – no cheating!)

(1) When does a contract of employment begin?
  • The first day of employment
  • As soon as the candidate has accepted the job
  • When the candidate has been offered an interview
(2) What age is an employee entitled to the National Living Wage?
  • 16
  • 21
  • 25
(3) What are employees not entitled to?
  • The right to not be discriminated against
  • The right to a safe working environment 
  • The right to 7 weeks paid holiday
  • The right to not be harassed bullied or victimised 
(4) How many weeks of statutory maternity pay is a pregnant woman entitled to?
  • 5
  • 39
  • 52
  • 36
(5) If an employee has a disability, what must the employer do?
  • Make reasonable adjustments 
  • Dismiss them
  • Avoid discussing the subject with the employee
(6) An employee should be paid for all unauthorised overtime
  • True
  • False
(7) What is the current National Minimum Wage Rate for employees aged 21 and over?
  • £6.47
  • £7.38
  • £8.91
  • £10.05
(8) Can an employee claim they have been sexually discriminated against if they have only been employed by the company for 6 months?
  • Yes
  • No
(9) What is constructive dismissal?
  • An act of employment termination made without good reason or contrary to the country’s specific legislation
  • A situation in which an employee’s contract of employment has been terminated by the employer, where the termination breaches one or more terms of the contract of employment, or a statute provision or rule in employment law
  • When an employee terminates the employment relationship in response to the employers behaviour towards them

 

 

 

 

 

 

 

 

 

Answers

(1) A contract starts as soon as an offer of employment is accepted. Starting work proves that you accept the terms and conditions offered by the employer.

(2) 25. From April 2018, individuals aged 25 and over are entitled to £7.83ph.

(3) An employee is not entitled to 7 weeks paid annual leave.

(4) If an employee qualifies for Statutory Maternity Pay (SMP) it is paid for a maximum period of 39 weeks. It is paid: for the first six weeks at 90 per cent of their average gross weekly earnings with no upper limit. for the remaining 33 weeks at the lower of either the standard rate of £140.98 or 90 per cent of their average gross weekly earnings.

(5) It is an employers duty to make reasonable adjustments to allow disabled employees to carry out their work activities with ease.

(6) True

(7) £7.38

(8) Yes

(9) Constructive dismissal occurs when an employee terminates the employment relationship in response to the employers behaviour towards them.

Can menopausal symptoms amount to a disability?

Posted on by @deliver_els

Under the Equality Act 2010, a person is viewed as disabled if they suffer from a physical or mental impairment that has a substantial ‘long term’ negative effect on their ability to carry out day to day activities.

A woman going through menopause is likely to suffer from symptoms such as depression, mood swings and sleep disturbances.

The level of symptoms differ, and in some cases some women will suffer more extreme symptoms. But do these amount to a disability? This was reviewed in the Employment Tribunal (ET) case of Davies v Scottish Courts & Tribunal Service.

In this case, the claimant worked as Court officer for over 20 years. She began to suffer substantial symptoms related to menopause, which included stress, anxiety, heart palpitations, memory loss and pins and needles in her hands and feet. As well as this, she experienced tiredness, light-headiness and was at risk of fainting. Despite this, she kept on working and was put on medication for a bout of cystitis.

Ms Davies stored the medication – which came in granules – that were to be dissolved in liquid – in a pencil case on her desk, adding her medication to her water jug throughout the day.

However, one day Ms Davies returned from an adjournment and discovered two men drinking water from her jug. She voiced her concerns to them; that they had been drinking her medication when an argument broke out with one of the men launching into a rant.

As part of the disciplinary process, an Occupational Health Report was obtained. Details within this report concluded that not only did Ms Davies’ condition lead to heavy bleeding, but she suffered from amnesia too and as a result was easily confused and forgetful. Her employers disregarded this report and argued that she had knowingly misled the men about her mediation in the water – and she was dismissed.

Employment Tribunal considerations

The ET established that the report and the employer’s knowledge on how extreme her symptoms were, clearly met the definition of disability. This was supported because her symptoms were a physical impairment which had a long-term adverse effect on her ability to carry out normal day to day activities. Her employment was reinstated, and her employers were forced to pay over £19,000 in damages.

Employer considerations

The decision in this case highlights the importance of employers making an effort to understand the extent in which any condition affects an employee’s ability to carry out day to day activities. While most women will only suffer from minor symptoms, it is important that employers recognise some will suffer more severely. All employers should be aware of the possibility of discrimination complaints being brought against them and ensure they take necessary action to make reasonable adjustments in the workplace.

How can Employment Law Services (ELS) help?

If you are an employer who requires assistance with any of the issues raised in this blog contact us today for your free consultation 0370 218 5662.

Top tips to help employers stay on the ball throughout the World Cup

Posted on by @deliver_els

World Cup fever is well and truly underway, this blog focuses on how to manage your football fanatic employees and embrace the competition in the workplace.

From football crazy fans, to those that just enjoy the occasional game, times like these will see most employers having to deal with a larger number of annual leave requests, sick days and moans about not having time to watch some of the matches.

Acas’ full guidance for the World Cup 2018 include top tips such as:

Sporting and events policies

These can be used for all sporting events and not just the World Cup. This policy should be made up of provisions that cover HR and health and safety issues; outlining any exceptions you would be willing to make during a major event.

Time off

All annual leave requests should be considered fairly. As football is not everyone’s thing, a consistent approach should be applied throughout.

The right to refuse

Employers should note that they are well within their rights to refuse annual leave if they receive too many requests, or if it is clear that the business will suffer with too many employees off at the same time.

Absence levels

Employers should be aware of high levels of absence and late attendance throughout the World Cup. In this instance, monitoring absences in line with the companies’ absence policy is recommended.

Social media policy

It is likely that there will be an increase in the use of social media such as, Facebook, Instagram, Twitter etc throughout the World Cup. Employers should remind all employees of the company’s social media policy during working hours. This policy should be clear on what will be viewed as acceptable and unacceptable internet use.

Alcohol policy

Showing up to work under the influence may be viewed as a matter of disciplinary. Employers should have drug and alcohol policies in place to ensure that problems are dealt with effectively and consistently. All employees should be reminded of this policy.

Employee behaviour

Employees may get fairly competitive and carried away with rivalries during the World Cup. It is important that employees are aware that verbal abuse will not be tolerated in the work place. Verbal abuse includes threatening, shouting, swearing, insulting or mocking an individual.

Employers are responsible for preventing bullying and harassment and will be liable for any harassment suffered by their employees. Having an anti-bullying and harassment policy in place can help prevent these problems.

Most importantly, have fun!

Employers should treat the World Cup as an opportunity. Any international sporting event is a great way to bring your team together and create a fun working environment. Employers may wish to relax some of the rules (for example, allowing employees to wear football shirts or organise a sweepstake) gestures like these will not go unnoticed and can really boost employee morale in the workplace.

How can Employment Law Services (ELS) help?

If you are an employer who requires assistance with any of the issues raised in this blog contact us today for your free consultation 0370 218 5662.

Employment Status: Supreme Court dismisses Pimlico Plumbers’ appeal

Posted on by @deliver_els

Yesterday, the Supreme Court handed down its eagerly sought verdict on the employment status of plumber, Gary Smith.

In the unanimous vote, the Supreme Court dismissed Pimlico Plumbers’ appeal and upheld earlier rulings that Mr Smith was in fact a worker and not a self-employed contractor.

In this case, the Supreme Court had to conclude:

  • Whether Mr Smith was obliged to personally carry out his work duties; and
  • Whether Pimlico Plumbers could be viewed as a client or customer of Mr Smith

The main feature of Mr Smith’s contract was that he had the obligation to carry out the work himself and did not have the right to pass the work on to someone else. However, he did have the right to pass on the work to another Pimlico Plumber, this was a qualified right which was not set out in the written contract.

Mr Smith was able to decline work and take some financial impact, but this did not outweigh the factors that pointed against Pimlico Plumbers being a client. Further, Pimlico Plumbers were in control of Mr Smith’s work uniform, his administrative duties and his wages. This relationship was a fundamental indictor when determining whether Pimlico Plumbers were a client of Mr Smith.

Taking all of the above into consideration, the Supreme Court held that the original tribunal had been right to conclude that Mr Smith was a worker and not self-employed.

What does this mean for employers?

The Supreme Court’s decision does not set any new legal grounds or redefine any of the legal tests that should be used when verifying an individual’s employment status.

However, it is important that employers are aware of what defines the employment relationship as it not only sets out their responsibilities, but individuals rights too. It also affects how they pay tax and national insurance and some entitlements.

A person will be classed as a worker if:

  • They have a contract or other arrangement to do work or services personally for a reward (your contract doesn’t have to be written)
  • Their reward is for money or a benefit in kind, for example the promise of a contract or future work
  • They only have a limited right to send someone else to do the work (subcontract)
  • They have to turn up for work even if they don’t want to
  • Their employer has to have work for them to do as long as the contract or arrangement lasts
  • They aren’t doing the work as part of their own limited company in an arrangement where the ‘employer’ is actually a customer or client

A person will be classed as an employee if:

  • They’re required to work regularly unless they’re on leave, for example holiday, sick leave or maternity leave
  • They’re required to do a minimum number of hours and expect to be paid for time worked
  • A manager or supervisor is responsible for their workload, saying when a piece of work should be finished and how it should be done
  • They can’t send someone else to do their work
  • The business deducts tax and National Insurance contributions from their wages
  • They get paid holiday
  • They’re entitled to contractual or statutory sick pay, and maternity or paternity pay
  • They can join the business’s pension scheme
  • The business’s disciplinary and grievance procedures apply to them
  • They work at the business’s premises or at an address specified by the business
  • Their contract sets out redundancy procedures
  • The business provides the materials, tools and equipment for their work
  • They only work for the business or if they do have another job, it’s completely different from their work for the business
  • Their contract, statement of terms and conditions or offer letter (which can be described as an ’employment contract’) uses terms like ‘employer’ and ‘employee’

A person will be classed as self-employed if:

  • They’re in business for themselves, are responsible for the success or failure of their business and can make a loss or a profit
  • They can decide what work they do and when, where or how to do it
  • They can hire someone else to do the work
  • They’re responsible for fixing any unsatisfactory work in their own time
  • Their employer agrees a fixed price for their work – it doesn’t depend on how long the job takes to finish
  • They use their own money to buy business assets, cover running costs, and provide tools and equipment for their work
  • They can work for more than one client

How can Employment Law Services (ELS) help?

If you require employment law advice on any of the issues raised in this article, or any other employment issue give us a call today on 0370 218 5662.  You can also find out more about our fixed fee HR packages here and fixed fee employment law packages here, or get in touch.

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