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HMRC internal manual

National Minimum Wage Manual

From
HM Revenue & Customs
Updated
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Status: Weighing up the evidence

When all the information regarding an arrangement has been gathered a reasoned opinion must be formed about whether the individual doing the work is a worker or not.

Each case must be taken on its own merits. Look at the facts and determine whether the relationship is more one of an employee to his employer or someone who is genuinely self-employed providing services to a client or customer.

No single factor will be totally conclusive either way and you need to make a reasoned decision by looking at the case as a whole. The burden of proof in status queries rests with the employer.

If you consider that a person has the status of a worker then you should advise the parties in writing of your opinion together with your reasoning. Any arrears of national minimum wage should be collected in line with the enforcement policy (NMWM13010).If an employer disagrees with your opinion regarding the status of the worker and there are arrears of national minimum wage, they can submit an appeal against a notice of underpayment (NMWM15030).

The issue of whether a person is a worker or not can only be ultimately determined by the courts/tribunals. When forming your view you may wish to refer to the outcomes of previous tribunal cases and the factors that were considered in the respective judgments (NMWM04120).