Guidance

Employment status and rights: support for individuals

Published 26 July 2022

Your statutory employment rights at work - like the minimum amount you should be paid, or whether you’re entitled to take paid leave from work for holidays or maternity leave - are determined by your employment status. See the table of Employment Rights for some key rights broken down by employment status and qualifying periods.

In Great Britain, we have 3 main types of employment status for determining your employment rights and protections:

• employees are entitled to all employment rights, subject to the length of time you have worked for your employer (for example, some rights require you to have been working continuously in the same job for a certain amount of time to qualify) and have responsibilities towards your employer, such as making sure you turn up to work
• workers ^{[footnote 1]} are entitled to some employment rights such as the national minimum wage or national living wage, holiday pay and protection against unlawful discrimination. You are entitled to fewer rights than employees, but in return you have more flexibility over when, how much, and where you work
• self-employed individuals generally have no employment rights but have significant flexibility in deciding whether to work since they are in business for themselves

This guidance is to help you work out your own employment status, and therefore understand which employment rights you are entitled to. Please note that there is a separate system for determining your tax status.

Assessing your employment status and knowing your rights

To help work out your employment status, you may first want to ask your employer (or engager – a person or business that engages self-employed individuals for work).

Or you can look at what is written in your written statement of particulars or contract. If you have a written statement of particulars, this is an indication that your employer regards your employment relationship as one of either employee or worker. If your written statement has details of when your continuous service began, this means that your employer regards your employment relationship as one of employee status. Continuous employment is when an employee has worked for one employer without a break - see further information on what constitutes a ‘break’ in service.

However, it is important to understand that ultimately your employment status is dictated by the reality of your working relationship with your employer (or engager), not necessarily by what is written in your statement of particulars or contract. For example, your contract could say that you are self-employed, and that you can send someone else to carry out the work for you at any time, but if in reality you have to carry out the work personally, this means you are more likely to be a worker or an employee. If the terms of your contract or written statement don’t reflect your actual work situation, see the section If you don’t think your employment status is right.

Here are some tips on how to determine your employment status, based on your work situation:

You may be an employee if you:

• have an employer, manager or supervisor with extensive control over your workload and how your work should be done
• are required to work regularly unless you are on leave
• are required to do a minimum number of hours and expect to be paid for the time you have worked
• can expect work to be consistently available - meaning your employer is required to provide you with work and you are required to perform that work for your employer
• are employed to do the work yourself (provide a personal service) and only have a limited right to send someone else to do the work for you, that is, send a substitute
• do not provide or use your own equipment
• are paid a wage and your financial risk is limited (for example you are paid by completing hours of work rather than by completing a task)
• are taxed as an employee – meaning you are on PAYE (pay as you earn)

You may be a worker if you:

• have a substantial amount of freedom over where, when and how much you work and mostly do not have obligations to make yourself available for work
• are under a degree of control from your employer when you are working (for example you are subject to a recommended route when delivering a parcel, rated by the service users and subject to a penalty if you receive poor ratings, required to wear a uniform when you carry out your work or told to smile when you greet customers)
• the work you carry out for your employer(s) is often more casual (for example your work is less structured, not regular guaranteed hours)
• receive pay for your work that is set by your employer, rather than negotiated by you
• are employed to do the work yourself (provide a personal service) and only have a limited or no effective right to send someone else to do the work for you, that is, send a substitute
• you are an integral part of the business (for instance you assist other members of a team or are subject to the company disciplinary procedures)
• you do not tend to actively market your services as someone who regards themselves as self-employed

You may be self-employed if you:

• have significant freedom in when, where and how you work
• are responsible for the success or failure of your business, and can make a financial loss or a profit
• are able to send someone else to do the work without any restrictions (do not have to provide a personal service)
• can negotiate the price for your work (for example you are able to work for different clients and charge different fees)
• use your own money to buy business assets, cover running costs, and provide tools and equipment for your work
• are not integrated into the client’s business (for example no company email address, not subject to disciplinary proceedings, and are able to turn down work if they do not like the fee or price)

If you are still unsure of your employment status, you can also think about some of the factors around how you carry out your day-to-day work and what your entitlements and responsibilities are:

• what your responsibilities are and whether you have control over when, where and how the work is done. The less control you have, the more likely you are to be a worker or employee
• whether you can send someone else to carry out the work. If you can’t, then this may point to worker or employee status
• whether you expect work to be consistently available. The more regular the mutual obligations on the employer to provide work for you and for you to carry this out, the more likely that you will be an employee
• how you are paid. If you are paid per output or against invoices, you are more likely to be self-employed, but if you are on the payroll and get payslips you are more likely to be an employee or worker
• whether you decide how much to charge for your work. The more freedom you have to decide how much you get paid, the more likely you will be self-employed
• whether you are subject to a ratings system, have a uniform or are required to use your own tools. If you are required to wear a uniform, are penalised for not achieving consistently high ratings and do not use your own tools, this may point to worker or employee status

Example

A courier driver works for a number of organisations including a delivery firm, for which they complete a range of shifts each week on a zero-hours contract. When they arrive for work with this delivery firm, they are given a list of the packages that need to be delivered in a specified order and with a specified route to follow. The driver must use their own van, wear the organisation’s uniform and stick-on vehicle branding from the delivery firm. They are paid per delivery (though there is no scope to vary the route/order). The driver also has a limited right to sub-contract the work if they were unable to work - they must notify the company and the substitute driver must have completed a similar training course.

For the purpose of their relationship with this delivery firm, it seems likely the individual is not working as part of their own professional business as the degree of control exerted by the delivery firm is too great. The courier driver is expected to complete the shifts they have accepted, use company branding and uniform, and follow required routes. The driver also appears to be required to provide a degree of personal service that’s more compatible with worker or employee status than self-employed status as they only have a limited right to subcontract with an individual who has completed similar training. The individual therefore satisfies the personal service requirement and is working under a degree of control which is consistent with worker status. There are other relevant factors for this example such as that the individual is not subject to an exclusive relationship and works for other organisations, is paid per delivery as opposed to a salary and provides their own van (equipment) pointing towards a more flexible working arrangement than an employee. Overall, it is likely this individual is a worker.

For further examples around assessing your employment status, please see the detailed guidance for HR professionals.

If you don’t think your employment status is right

• Make a list of the factors of why you believe your employment status isn’t right
• contact Acas for further advice. While they cannot provide a determination of status for you, Acas will provide impartial advice on the law and your options
• consider talking to your employer (or engager). Businesses are often open to resolving problems quickly and informally, which could save you having to start more formal proceedings
• consider getting legal help or advice. You can get free legal advice from Citizens Advice or Citizens Advice Scotland
• if you fail to come to an agreement with your employer (or engager), you can make a claim to an Employment Tribunal (in which case you must notify Acas before making a claim). See more about the Employment Tribunal process
• you’ll be offered the chance to try and settle the dispute without going to tribunal by using the free Acas Early Conciliation service. These talks can take up to 6 weeks. If early conciliation does not resolve the dispute or you choose not to proceed with conciliation, Acas will send you an early conciliation certificate - use this when you make a claim to the tribunal. Once you receive your certificate, you should have at least one month to make your claim. Acas conciliation will continue to be available up until a tribunal judgment is made

If you want further information on your rights as an agency worker

You are an agency worker if you have a contract with an agency but you work temporarily for a hirer. Agency workers may qualify for employee or worker employment rights depending on their relationship with their employer.

Your agency must give you a Key Information Document and a contract or terms and conditions before providing services and give you written details about the work once you’re offered a job. Your agency is also responsible for paying you in full for all the hours you worked, even if they have not received the money from the organisation they supply you to work for day-to-day (the hirer).

If you think that your agency has not treated you fairly, you can:

• contact Acas (0300 123 1100) to discuss the issues you have, and if you wish to make a complaint, they will pass your call to the Employment Agency Standards Inspectorate (EAS)
• use the online complaints form
• contact EAS directly:
  • by email eas@beis.gov.uk
  • by phone on 020 7215 4477 and ask to speak with an EAS Inspector
  • by post at the following address: Employment Agency Standards Inspectorate, Department for Business, Energy and Industrial Strategy, 1 Victoria Street, London, SW1H 0ET

An EAS inspector will then investigate relevant complaints. They will first seek to work with the agency to address the issue and may then take enforcement action if necessary.

Further information on how to make a complaint

For further information on how to make a complaint if you haven’t received employment rights that you should have, please see:

• if you think you may have been paid less than the minimum wage that you are entitled to, you can report this to HM Revenue & Customs (HMRC) using the online form to complain about pay and work rights
• if your employer has not enrolled you into a pension scheme when they should have (for example, if you believe you qualify for worker or employee status) or your employer has not paid money into your workplace pension scheme or regularly makes late payments, you should report this to the Pensions Regulator.
• if you have any information about the exploitation of workers (including any exploitation you may have suffered) you should contact the Gangmasters and Labour Abuse Authority (GLAA). The GLAA works in partnership with the police and other organisations to protect vulnerable workers from labour exploitation and modern slavery. More information is available on the GLAA website.

Employment rights

A. Worker / employee rights

Statutory right / protection	Employee	Worker	Qualifying period
Unlawful deductions from wages	Yes	Yes	Day 1
National Minimum Wage/National Living Wage	Yes	Yes	Day 1
Paid holidays	Yes	Yes	Day 1
Right to be accompanied at a grievance/disciplinary hearing	Yes	Yes	Day 1
Whistleblowing	Yes	Yes	Day 1
Discrimination, other prohibited conduct under the Equality Act 2010 and reasonable adjustments*	Yes	Yes	Day 1
Equal treatment for part-time workers	Yes	Yes	Day 1
Protection from detriment for trade union membership*	Yes	Yes	Day 1
Itemised pay slip	Yes	Yes	Day 1
Written particulars of employment	Yes	Yes	Day 1
Protection from detriment in certain health and safety cases	Yes	Yes	Day 1
Workplace pension scheme*	Yes	Yes	Day 1
Right to join a trade union and to participate in trade union activities*	Yes	Yes	Day 1

B. Employee rights day 1

Statutory right / protection	Employee	Worker	Qualifying period
Maternity leave and adoption leave	Yes	No	Day 1
Statutory bereavement leave	Yes	No	Day 1
Time off various activities and duties (paid and unpaid)	Yes	No	Day 1
Equal treatment for fixed-term contract staff	Yes	No	Day 1
Unfair dismissal (for certain automatically unfair reasons)	Yes	No	Day 1
Breach of contract	Yes	No	Day 1
Statutory Sick Pay*	Yes	may be entitled	Day 1

C. Employee rights with qualifying period

Statutory right / protection	Employee	Worker	Qualifying period
Minimum period of statutory notice	Yes	No	1 Month
Medical suspension pay	Yes	No	1 Month
Guaranteed pay	Yes	No	1 Month
Shared parental leave and Paternity leave	Yes	No	26 Weeks
Right to request flexible working	Yes	No	26 Weeks
Right to request time off for study or training	Yes	No	26 Weeks
Adoption pay, Shared Parental pay, Paternity pay, Maternity pay and Parental Bereavement pay*	Yes	may be entitled	26 Weeks
Unpaid parental leave	Yes	No	1 Year
Unfair dismissal (ordinary)	Yes	No	2 Years
Written reasons for dismissal (in most cases)	Yes	No	2 Years
Statutory redundancy pay	Yes	No	2 Years

*Further information on specific employment rights and statutory payments is available in the more detailed guidance for HR professionals

1. ‘Worker’ is referring to a limb (b) worker as described in Section 230 of the Employment Rights Act 1996. For further information, please visit the detailed guidance for HR professionals. ↩