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Am I a worker, an employee or self-employed?
This depends on the contractual relationship you have with your employer. The distinction is important because many important rights – such as the right to claim unfair dismissal or maternity leave – depend on being an employee. For other rights, such as the right to be paid the National Minimum Wage, you must be a worker.
All employees are workers, but not all workers are employees. The third category – the genuinely self-employed – have very few employment rights.
Every year court cases hang on the distinction between the three categories and unfortunately there is no clear definition. However, there is a rough rule of thumb:
- If your employer has to provide work for you personally, which you can't turn down, on a regular basis, says when and where the work is to be done, supplies the tools or other equipment, pays tax and National Insurance on your behalf, and can subject you to a disciplinary procedure if you don’t follow the rules or if your performance is ‘unsatisfactory’, , then you are almost certainly an employee, and have what is known as a 'contract of employment'.
- If you are contracted to do work personally but the employer does not have the right to control when and where work is done, you may not necessarily be an 'employee'. Even so, you may be a 'worker' and therefore entitled, for example, to the National Minimum Wage.
- If you are genuinely free to decide when you will work, you can substitute someone else to do your work, you can carry out work in the manner you best see fit, make your own sickness and holiday arrangements, and pay your own tax and National Insurance, you could be a self-employed person, contracted to provide a service to the employer. Hence your contract is known as a 'contract for services'.
Many people are happy to be self-employed and some occupations, such as journalism, are likely to have a high proportion of self-employed workers. However, some unscrupulous employers deliberately miscategorise individuals as self-employed. Specifically, they are trying to prevent the people who work for them from becoming 'employees' so that they do not enjoy the full range of employment rights to which they are entitled.
Important case law, especially the landmark Supreme Court judgement of Autoclenz Limited v Belcher  UKSC 41, makes it clear that just because signed contract documentation makes it look as if someone is self-employed, that is by no means the end of the story. Employment tribunals must take into account the inequality of bargaining power between employer and employee, and must look at the whole context, not just the contract documents, to make sure the written contract document genuinely reflects what the parties intended the employment relationship to be.
Working out who is an employee and who is self-employed is contentious and often unclear. If you are unsure, you should seek advice from Citizens Advice. Contact your union if you are a member, or use one of the resources on workSMART's free help page.
If you are concerned about your entitlement to the National Minimum Wage or holiday pay and you are not a member of a union, you can call the Acas Helpline on 0300 123 1100.