Worker -V- Employee Rights [Video]Posted in : Back to Basics on 16 June 2016
What is an employee? An employee is someone who works under an employment contract. The contract can be verbal or written, but it must have three basic features. The first is that the employee must be under an obligation to perform the contract personally. The second is there must be mutuality of obligation between the parties. The third is that the employer must have a sufficient right of control over the employee.
Even if the written contract does not include all of these elements, a tribunal will look behind that contract to see what happens in practice. If all three elements are there, it is likely to deem the relationship as that of employer and employee.
Someone who works for a company will probably be deemed an employee if they're required to work regularly, unless they're on leave, if they get paid holiday, if they're under the direction and control of the supervisor or manager, and if they're entitled to statutory sick pay or contractual company sick pay, or they could be disciplined or raise a grievance with the company.
If the three elements that I described earlier are not there, then the individual may be regarded as a worker. Someone is likely to be regarded as a worker if they occasionally do work for a business or the business doesn't have to offer them work and they don't have to accept it, or if their contract uses terms like "casual", "freelance", "zero hours", "as required", or something else. It may be applicable if they can't send someone else in to do their work or if the business deducts tax and national insurance from their wages.
Workers are entitled to some employment rights, things like, being entitled to the national minimum wage, protection against the unlawful deduction of wages, the statutory minimum level of paid holiday, the statutory minimum length of rest breaks, being entitled to have the limitation to the 48-hour working week applied to them, protection against unlawful discrimination, protection for whistle blowing, and the right not to be treated less favourably if they work part time.
But, workers are not usually entitled to minimum notice to terminate their engagement, protection for unfair dismissal, the right to request flexible working or statutory redundancy pay. Employees, on the other hand, are entitled to all of those things and to all the rights that a worker has.
There are a huge number of employment related rights under the laws applicable in Northern Ireland. If you're unsure about it, it is worth checking to see whether they apply to your workers and to your employees.This article is correct at 16/06/2016
The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.