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My employer says that work rights don't apply to me because I'm a 'worker', not an 'employee'. Is this correct?
It is true that some statutory work rights are only available to 'employees', whereas other important rights – for example, the right to be paid at least the national minimum wage or to paid holiday – are available to all ‘workers’. However, one thing is certain: you will qualify for most basic statutory employment rights as long as you are under a legal obligation to carry out some work yourself. By contrast, if you are genuinely free to provide a replacement person to do the work instead of you, you will be self-employed. The genuinely self-employed have very few rights.
As a ‘worker’, you are entitled to basic employment rights such as the national minimum wage, holiday pay or freedom from discrimination, even though your employer does not guarantee you any hours of work at all – a typical 'zero-hours contract' arrangement. The minute you accept a shift or assignment, you will be under a legal obligation to carry out some work yourself for the duration of that shift.
Some workers are entitled to better rights because they are 'employees'. Employees have the right, for example, to parental leave, and protection from redundancy or unfair dismissal (as long as they have enough qualifying service).
When working out whether someone is an employee or a worker, the deciding factor is usually the degree of control that can be exercised over how and when tasks are performed. You are more likely to be an employee if:
- your employer provides work within set hours and pays you for being available to work; and
- your employer controls what you do and lays down how and when you do it, and can discipline you for not working during the set hours.
There have been many hundreds of employment tribunal cases involving employers disputing whether someone is a worker, employee or a self-employed person. The law governing employment status is extremely complex, and bad employers are constantly devising different mechanisms for avoiding employment rights, tax and National Insurance.
Unions are expert at fighting bogus claims about employment status and at campaigning for better employment rights and clarity over employment status. In sectors such as construction, where bogus self-employment is endemic, unions such as UCATT have been campaigning on this issue for many years.
Join a union if you have concerns over your employment status. Use our Union Finder tool to find the best union for you.