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Are you employed ? Are you a worker or an employee ? Are you sure ? Various laws which offer protection and benefits use different definitions of those that they are designed to help. Many of these definitions are set out in European Directives and do not always tally with previous UK laws. These are not only of interest to lawyers. Many cases, which decided the terms, conditions and rights of individuals, turned on these points. Below we briefly try to cross the legal minefield and emerge with some simple rules.
For many years the main distinction in status which was important in the law in the UK was that between being 'employed' and 'self-employed'. While this is still relevant, more recent legislation and EU directives distinguish between 'worker' and 'employee'. The first definition tends to be wider than the second so that, for example, some independent contractors qualify as workers but not employees. The Employment Rights Act (ERA) 1996 includes entitlements to claim unfair dismissal, redundancy payments, maternity leave and statutory maternity pay which only apply to employees while provisions that apply to workers include the right to protection of wages. Other rights which refer to the worker definition include the right to be accompanied at grievance and disciplinary hearings under the Employment Relations Act 1999, rights under the Working Time Regulations 1998 (based on an EU directive) and entitlement to the national minimum wage.
To be an employee, according to the ERA, there has to be a contract of employment and this must be a 'contract of service' not a 'contract for services'. Various past cases have established other criteria. The contract need not be written and can be 'implied'. The contract must be between the working person and the employer and not a third party (e.g. an employment agency). There must be an obligation on the person to provide work personally, there must be mutuality of obligation and there must be a degree of control exercised by the employer over the supposed employee. Various court decisions have denied the status of employee to people who were allowed to provide a substitute to do their work or who were under the control of another party rather than their supposed employer. If all these criteria are met the person may be an employee if the 'surrounding circumstances' indicate this.
The status of 'worker' is defined in the Working Time Regulations 1998. There must be a contract of employment or any other contract to carry out work personally but it must not be for 'a client or customer' by 'a professional or business undertaking'. However this can be 'express or implied and ... oral or in writing'. Because these tests are less strict than the 'employee' ones, a group of workers who are not employees has been created which often include those in construction who are supposedly on a 'self-employed' basis.
Finally there is the status of being in 'employment'. Anti-discrimination laws such as the Race Relations Act 1976 and the new regulations based on European equality directives use this definition. To attain this status you must have a 'contract of service or of apprenticeship or a contract personally to do any work or labour'. This does not exclude running a business or practising a profession. Case law has tended to a wide interpretation so that even if there is no payment involved (e.g. volunteer work) or certain other people carry out some of the work (e.g. a solicitor's secretary types letters) a person can still be in 'employment'.
This feature is largely based on an article in IDS BRIEF.co.ukA case whose opinion we reported on in issue 23 has come to judgement. Debra Allonby, backed by the lecturers' union NATFHE, was contesting her exclusion from the Teachers Pension Scheme after her redundancy from the college where she worked and re-engagement as an agency worker. She also sought equal pay with equivalent lecturers directly employed by the college.
As in the earlier court opinion this was rejected because no 'single source' was responsible for her loss of pay. However the ECJ ruled that, because the pension scheme was run by the state, they could be held accountable for the fact that more women than men were in Ms. Allonby's position and, therefore, that the rules of the scheme were discriminatory. This might also extend to other state benefits such as redundancy payments and unfair dismissal compensation. NATFHE general secretary Paul Mackney said, 'This landmark decision is a significant victory that moves forward employment rights for agency teachers. The government must now act quickly to comply with European legislation and extend full pension and other employment rights to all agency teachers'.
In January the ECJ dealt with a case from the UK's National Health Service. KB, a nurse, had worked for the NHS for over twenty years and her partner, R wanted to benefit from her survivor's pension should she die first. R had undergone female to male gender assignment surgery. R's birth certificate stated the sex as female. It is not possible in UK law to alter a birth certificate. As the law will only validate marriages between a male and a female, the couple could not marry. The NHS survivor's pension only applies to married couples. Therefore the benefit was refused.
The court found that, while it was allowable for a pension scheme to be restricted to married persons as long as either partner may claim it, if a man and a woman are prevented from marrying the European Convention on Human Rights has been broken. On the other hand the ECJ stated that it is for each Member State to decide when change of gender is given legal recognition. It was up to the national court to reconcile these two positions.
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