One of the key points to establish in an employment claim is your employment status, whether you are an employee or worker as opposed to a self-employed contractor. Employees have employment rights such as protection from unfair dismissal, which the self-employed person does not.

Whether someone is an employee or self-employed is often obvious, but in this day and age of zero-hour contracts, flexible working, and gig economy, there are some grey areas.

Some businesses try to argue that the people working for them cannot pursue employment claims because they are not employees or workers. 

What an employer considers the contractual relationship to be or how someone is taxed is not necessarily the end of the matter. The courts and tribunals look at what the reality of a relationship is even if the parties have signed a written agreement about it. They recognise that often in these situations there is unequal bargaining power so someone may have signed an agreement saying they were self-employed when the reality is that that is not the case. So, to look at the reality of a relationship they apply a number of tests. Whether someone is an employee or not depends on the circumstances and not all the tests have to be passed or failed to prove it one way or another. But they include questions like:

Can the person doing the job send someone else instead to carry out the work? An employee usually has to turn up to work and do the job themselves. But if you want a self-employed plumber to fix a leak, they could send one of their other work colleagues to do it. As the customer you don’t mind so long as the leak gets fixed, which tends to suggest that you are not the plumbers legal employer.

Who provides the tools and materials? If you are employed by someone you generally expect them to provide the equipment and materials you use for your work. This could include desks and computers if you are an office worker, or the building materials and tools if you are a builder. If you are self-employed, like the plumber, you will provide your own tools and materials.

Can someone do the same work for other people? If you are employed full-time, as say an office worker, you would expect your employer to take a dim view of you doing the same work for another business during your normal working day. However, you would expect that a self-employed plumber is working for other customers as well as you.

Who controls and directs the work? An employee usually has an ultimate manager and the business that employs them can tell them how and when to do the work, sometimes in great detail. Back to our self-employed plumber, if you are asking them to fix a leak you would not expect to stand over them to tell them how to do it. 

There are other tests too, but these give a flavour of what the courts look for. Because it is a complex area if there is any doubt it is worth discussing with a solicitor whether you are an employee with rights.