Employee or Not - what is your status?
This is a difficult question, as there is no detailed definition of who is actually an employee, which can make things difficult for businesses. Employers certainly don’t want to end up in an employment tribunal, so what should they do to avoid this. Each case must be looked at individually and certain rules should be followed.
One of the main criteria is who has the control:
who controls what work is done?
who controls where the work is done?
what control is exercised over how the work is done?
who controls when the work is done?
who controls who does the work, particularly with respect to the right to delegate, send a replacement or hire staff to help?
The higher the degree of control by a business, the more likely it is that an employment relationship exists.
The next key factor to look for is as ‘mutuality of obligation’ - that is the obligation of the 'employer' to provide work and the worker to do it. This will be indicated by:
how many engagements/contracts the worker performs and whether they are performed mainly for one person/ business, or for a number of different people/businesses?
commitment as evidenced by sick pay, holiday arrangements etc
commitment as evidenced by guarantee of work and guarantee of service.
Are they under an obligation to accept work and is the business under an obligation to offer work to him.
Where mutuality is present then there is likely to be an employment relationship.
Nichola Coulthard - nichola@coulthardhr.co.uk
Coulthard Human Resources - www.coulthardhr.com
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