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When Is A Worker Not A Worker Or Are They?

When Is A Worker Not A Worker Or Are They?

When is a worker not a worker, and by definition an employee.

It is and always has been an interesting question, at least in employment circles.

Many companies deem some of their staff, some all of their staff as either contractors or even self employed.

For some companies, this is genuine, and is both by fact and belief, the person providing the service, does so to many different companies even.

However when is a worker not a worker, even if the contract is rock solid?

Written Contract provided to person who is classified as being a worker under the Working Time Regulations of 1998. Person is classed as being responsible for his own time etc, however, the devil is in the detail of course.

Not necessarily, held the EAT in Boss Projects LLP v Bragg.

The Claimant was engaged as a scaffolding supervisor under a chain of contracts whereby the contractor (Mears) contracted with another company (Potensis) for the provision of subcontractors. Potensis in turn contracted with the Respondent (Boss) for the provision of individuals. Payment was made down the chain to Boss, who in turn paid the Claimant.

The Claimant’s contract with Boss described the Claimant as a ‘subcontractor’ and ‘in business on his own account’. It gave absolute discretion to substitute or delegate his workload or hire assistants for which he was solely financially responsible.

It permitted the undertaking of other work before, after or concurrently with work for Boss. It explicitly provided no entitlement to holiday or sick pay and rendered the Claimant liable for his own tax and national insurance.

So in legal and straightforward terms, the Claimant was a worker and not an employee. This is not just for HMRC purposes, but also, if not an employee, then you can’t bring a claim to the Employment Tribunal.

Mr Justice Mitting (sitting alone) found contractual terms, however watertight, do not provide a complete or reliable definition of the nature of the relationship between the parties to a contract.

The EAT continued to conclude the Claimant could not have been expected to have read every page and, in the circumstances, the tribunal was right to look to substance as well as form. He concluded the substitution clause was never intended to be used by either party and observed the Claimant brought none of his own tools to the job.

As such, despite express contractual provision otherwise, the Claimant was a worker.

This raises many questions, including, the EAT (Employment Appeal Tribunal) stating that the Claimant could not have been held responsible to read a legally binding and providing Contract of Employment.

We do not have off the shelf solutions for our clients, we create bespoke solutions in both Contracts of Employment and Company Handbooks.

Not only that, but we deliver them for you back to your staff, and ensure that they understand the terms provided to them, getting the employees to sign their contracts.

If you would like a free (yes free) HR Health Check to look at your provided documentation, please contact us at Absolutely HR on 0131 331 2735.

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