Employment status

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Quick Facts

19th December 2023

  • There are three main categories of employment status, employees, hired directly by the organisation, workers (for example, casual, agency or freelance workers, performing services personally for the organisation or working on a seasonal basis), the self-employed (for example, contractors).

  • Employees are covered by the full range of statutory employment rights. Workers have a more limited range of employment rights.

  • In practice, the dividing line between employee and worker can often be blurred.

  • Employment status affects employment rights and tax and National Insurance liabilities, and liability for accidents and loss caused by the conduct of an individual.

Summary

The term “employment status” is the arrangement under which an individual is engaged to work for an employer.

In Practice

Employment Characteristics and Rights

Individuals are categorised into three different categories of “employment”:

  • employee

  • worker

  • self-employed.

The criteria by which legal classifications are determined are not laid down in legislation but have largely developed through case law.

Employee characteristics

Has a contract of service or apprenticeship whether expressed or implied. Tests for employment include whether:

  • the individual is under the control of the employer

  • the individual is part and parcel of the employer's undertaking

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Employment status: Resources

Downloads

Contract clause on volunteering

This is a contract clause that outlines the requirements and conditions relating to volunteers. The organisation will provide the volunteer with, for example, training, support, expenses, etc. Concerns may be raised by the volunteer and they must agree to certain requirements. The clause is binding in honour only. The clause contains a data protection statement, requiring the volunteer to be aware of the Company's data protection practices.

Application form for volunteers

This form can be made available to an individual who wishes to be engaged as a volunteer. The form asks the applicant to identify any particular work they would like to undertake, as well as the skills, knowledge or expertise which they believe they could bring to such a role. The form also outlines that certain volunteering roles with children, young people and vulnerable adults will require a criminal record check to be carried out. The form contains a data protection statement, referring to the privacy notice which will set out how the volunteer's data will be used.

Form for details of educational volunteers

For use in educational organisations, use this form to record details relating to volunteers, including whether they have been provided with key pieces of information.

Employee volunteering policy (basic)

This policy covers examples of volunteer schemes sponsored by the organisation, applications for volunteering work, the basis on which applications may be rejected, insurance and liability, health and safety, medical fitness, criminal checks, and the review and termination of a volunteering arrangement.

Employee volunteering policy (detailed)

This policy outlines the support that the organisation will provide for employees applying to volunteer their services to the community. Successful applicants are entitled to paid leave for a specified period. Evidence of acceptance as a volunteer must be provided.

Engagement of volunteers policy (basic)

This policy covers volunteering with the company. Volunteers do not have the same legal protection as paid employees. An agreement is provided to volunteers as well as training, support, supervision and copies of internal policies. The organisation agrees to provide insurance cover. Any concerns can be raised by the volunteer.

Engagement of volunteers policy (detailed)

This policy covers the status of volunteers, the engagement process, reimbursement of expenses, health and safety, insurance, management of volunteers, volunteers carrying out driving duties and the content of volunteer's engagement folder.

Volunteers policy

This policy may be used where a charitable organisation is using volunteers to provide services.

Reviewed 18 July 2023

Case Reports

IWGB v Central Arbitration Committee — Union recognition: employment status

In determining whether individuals were workers for the purpose of a trade union’s application for compulsory recognition under schedule A1 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), it was irrelevant that the reason the employer had drafted the contract in a particular way was to avoid giving the individuals the status of workers. The proper question was what was actually achieved. Where this amounted to an almost unfettered right of substitution, the contracts concerned were not contracts to perform personally any work or services so that the individuals were not “workers” for the purposes of s.296 of TULRCA.

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NMC v Somerville - Employment status: mutuality of obligation

This Court of Appeal (CoA) decision involved worker status and whether or not a commitment to offer or accept a minimum amount of work was crucial to worker status for the purposes of claiming holiday pay.

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Johnson v Transopco UK Ltd - Employment status: personal service

In another status case, the Employment Appeal Tribunal was called upon to weigh the balance of the requirement to provide personal service against the degree of control held by the claimant, and decide which side of the self-employed / worker status debate this particular claimant fell.

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Stojsavljevic v DPD Group UK Ltd - Employment status: substitution

The Employment Appeal Tribunal had to consider the status of owner driver franchisees in this case on employment status and consider once again the written agreement between the parties, the extent that represented the true relationship between the parties and the right of substitution found within it.

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Stuart Delivery Ltd v Augustine - Worker status: substitution

The Court of Appeal has upheld earlier decisions of the ET and EAT in another gig economy case, confirming that the ability to offer a piece of work to a substitute does not mean that the service is not provided personally, and therefore does not mean they cannot be found to be a worker.

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Addison Lee Ltd v Lange - Employment status: obligation to work

The Court of Appeal has refused to hear an appeal against a decision which found that private-hire drivers were ‘workers’ and not ‘independent contractors’.

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