Q What is a casual worker?
A The phrase 'casual worker' is often used to describe workers who are not part of the permanent workforce, but who supply services on an irregular or flexible basis, often to meet a fluctuating demand for work. Their legal rights will depend on their legal status: are they employed, self-employed and/or a worker?
Q What's the difference between employee, self-employed and worker status?
A Employees benefit from a range of statutory employment rights including the right not to be unfairly dismissed, the right to receive a statutory redundancy payment, the right to equal pay and the right not be discriminated against.
Individuals who provide services but are genuinely self-employed do not enjoy such statutory employment rights. A company's obligations to someone who is self-employed will be largely governed by the contractual terms that have been agreed either orally or in writing.
Also, a further category of worker was introduced into English law as a result of European legislation including the Working Time Regulations, the National Minimum Wage Act and the Part-time Workers (Prevention of Less Favourable Treatment) Regulations. This category sits between an employee and someone who is self-employed. And, while workers do not enjoy all the rights of employees, they enjoy a set of basic ones.
Q What exactly is a worker?
A A worker is anyone who works under:
- A contract of employment (who will also be an employee) or
- Any other contract, whether express or implied, and, if it is express, whether oral or in writing, whereby an individual undertakes to do or perform personally any work or services for another party, who is not a client or customer of any professional business undertaking carried on by the individual.
What this means is that a worker is someone who has agreed to work personally for an organisation, but who doesn't qualify as an employee - using the test above - and who isn't providing services as a professional commercial business. This will therefore cover freelances, staff provided by an agency and some self-employed contractors.
Q What rights does an employee have that a worker doesn't?
A Unlike workers, employees have protection against unfair dismissal, protection under TUPE, the right to maternity or paternity pay or leave or statutory sick pay. Workers have no right to a statement setting out the key terms of the contract or to statutory minimum notice. Also the statutory grievance and disciplinary/dismissal procedures do not apply.
Q What rights do workers have?
A Workers benefit from several basic rights:
- Protection against certain types of discrimination. Depending on the exact circumstances, this may include sex, race, disability and equal pay legislation
- Rights under the Working Time Regulations, such as paid holiday leave, restrictions on working hours and the right to rest breaks
- Right to the national minimum wage
- Protection for whistle-blowing
- Health and safety protection
- Protection against unlawful wage deductions.
Q How do I tell if someone is an employee?
A The Employment Rights Act 1996 defines an employee as an "individual who has entered into or works under a contract of employment".There is no simple test for determining whether an individual "works under a contract of employment". The court will look at any written contract (if one exists) and the factual reality. There are two core elements that must always be present in a contract of employment:
- There must be a requirement (whether written or implied) for the individual to provide the work personally and
- There must be mutuality of obligation. If an individual is free to choose whether or not to take on work when it is available and an organisation is under no obligation to offer work, then there will be no mutual obligation and the individual will not be an employee.
Q Are there any other factors to determine whether someone is an employee?
A A court will look at: whether the employer is able to control how the work is done whether an individual is fully integrated into the organisation the economic reality of who bears the business risk associated with the individual's activities whether the individual is subject to the company's disciplinary code, and whether the employer deducts Paye and NI from the individual's pay.