Employment status

The question that decides which rights you have before anyone looks at what went wrong — and the one your contract does not get the final say on.

What are the three employment statuses?

Employee, worker and genuinely self-employed. An employee works under a contract of employment. A worker is anyone under a contract personally to do work for someone who is not their client or customer, which includes employees and a wider group besides. Someone genuinely in business on their own account, serving clients, is self-employed and has the fewest employment rights.

Does my contract decide my status?

No. The label the parties put on the relationship is a starting point, not the answer. Tribunals look at how the arrangement worked in reality, and can disregard written terms that do not reflect the true agreement. That principle comes from Autoclenz v Belcher and was applied by the Supreme Court in Uber v Aslam.

What rights do workers have that self-employed people do not?

The main ones are the National Minimum Wage, paid annual leave under the Working Time Regulations, protection against unlawful deductions from wages, rest breaks, whistleblowing protection, protection from discrimination, and auto-enrolment into a pension where the criteria are met.

What rights do only employees have?

Ordinary unfair dismissal, statutory redundancy pay, statutory minimum notice, the right to a written statement of particulars in the fuller employee form, statutory maternity and paternity leave, and the right to request flexible working. Several of these also require a qualifying period of continuous employment.

Is employment status for tax the same as for employment rights?

No, and this trips people up. HMRC operates its own tests for tax and IR35 purposes, and there is no category of worker in tax law. Being taxed as self-employed does not prevent a tribunal finding you are a worker or an employee for employment rights purposes.

How do I get my status decided?

It is decided as part of a substantive claim rather than as a standalone question. A tribunal will usually deal with it at a preliminary hearing, because whether you are an employee, a worker or self-employed determines which of your claims can proceed at all.

Three categories, not two

Most people assume the choice is between employed and self-employed. Employment law in Great Britain has a third category in the middle, and it matters enormously.

works under a contract of employment. Employees have the full set of statutory rights, including ordinary

protection, statutory redundancy pay and statutory minimum notice, several of which additionally require a qualifying period of

is defined more widely: someone who works under a contract of employment

any other contract under which they undertake to perform work personally for another party who is not a client or customer of a business they carry on. This second limb — often called limb (b) — catches casual staff, many agency workers, zero-hours staff and much of the gig economy. Workers get the National Minimum Wage, paid annual leave, rest breaks, protection from

, whistleblowing protection and protection from discrimination — but not unfair dismissal or redundancy pay.

genuinely self-employed

is in business on their own account. They can send a substitute, they bear commercial risk, they market their services and they have a real client base. They have almost no employment rights, though the Equality Act still protects them in some contexts and health and safety duties still apply.

What tribunals actually look at

• Must you do the work yourself? An unfettered, genuine right to send a substitute points strongly away from employee and worker status. A right that has never been exercised, or is subject to the employer’s approval, carries much less weight.
• Who decides what is done, how, when and where? Set shifts, uniforms, scripted procedures, monitored performance and a requirement to accept work as allocated all point towards employment.
• Mutuality of obligation.
• Is there an obligation to offer work and to accept it? Its absence between assignments is a common reason casual staff are found to be workers rather than employees.
• Business on your own account.
• Do you provide your own equipment, take financial risk, stand to profit from sound management, invoice multiple clients, hold your own insurance? The more of these, the further from employee status.
• Integration and dependence.
• Are you part of the organisation — on the rota, in the team structure, using its systems and its email address — and economically dependent on it?

No single factor decides it. The tribunal stands back and looks at the picture as a whole, which is why status cases turn on detail and why contemporaneous documents — rotas, app records, instructions, invoices — matter more than either side’s characterisation of the relationship.

Why the paperwork does not settle it

Employers who want the flexibility of self-employment without the exposure of employment write contracts that say so. For years those contracts largely worked. Two Supreme Court decisions changed that.

, car valeters had contracts describing them as self-employed sub-contractors with a right of substitution and no obligation to accept work. The Supreme Court held that where written terms do not reflect what was actually agreed, particularly given the inequality of bargaining power in employment relationships, the tribunal can disregard them and find the true agreement. The valeters were employees.

, the Supreme Court went further, holding that the starting point is not the contract at all but the statutory purpose: the legislation exists to protect people in a subordinate and dependent position, and it would defeat that purpose to let the employer’s own drafting determine whether it applies. Uber drivers were workers, and their working time began when they logged into the app in the territory and were ready to accept trips.

The practical consequence for anyone reading their own contract: the words “self-employed contractor” at the top of an agreement are evidence, not a conclusion. If you cannot send someone else, cannot negotiate your rate, are told when and how to work and depend on that one organisation for your income, your status is at least arguable regardless of what the document says.

Status is not something you apply to have determined in the abstract. It is decided inside a claim — for unpaid wages, holiday pay, discrimination or dismissal — because the answer determines which of those claims can proceed. Where it is genuinely in dispute, a tribunal will usually list a

to decide it before the rest of the case goes forward.

That sequencing has a practical implication for deadlines. You do not get extra time because you were unsure of your status. The ordinary

of three months less one day still applies, extended by

. If you think you may be a worker, present the claim and argue status; do not wait until you are certain.

Finally, keep the tax question separate. HMRC applies its own tests, and there is no worker category in tax law at all. Being invoiced and taxed as self-employed does not prevent a tribunal concluding you were a worker or an employee for employment rights purposes — a mismatch that is common rather than exceptional.

A courier signs an agreement describing him as an independent contractor with a right to send a substitute. In practice he is allocated a fixed route, wears branded clothing, is tracked through the company app, is told his rate rather than negotiating it, and has never been permitted to send anyone in his place.

independent contractor

Substitution in practice

Control over route and rate

Likely status argument

If the tribunal finds he is a worker, the holiday pay and minimum wage claims can proceed and the deductions claim opens up. He would still not have unfair dismissal protection, which needs employee status. The app records, the route allocations and the refusals to allow a substitute are what carry the argument — not the heading on the contract.

Unlawful deduction from wages

Continuous employment

Employment tribunal time limit

Employment Rights Act 1996, section 230

Checking your employment status

Uber BV v Aslam [2021] UKSC 5

Employment Status — Employment Tribunal Glossary

Employee, worker or self-employed: what each status means, which rights come with it, the factors tribunals weigh, and why the contract label does not decide it.