LRD guides and handbook June 2014

Law at Work 2014

Chapter 2

2. CATEGORIES OF WORKER

[ch 2: pages 45-46]

Employment status

There are legal distinctions between an employee, a worker and someone who is genuinely self-employed. These distinctions are important because individuals have different statutory employment rights according to their employment status.

Statutory rights are rights that derive from a particular Act of Parliament or other piece of legislation. While contractual rights can be enforced by anyone with a contract (whether or not in writing), statutory rights only apply to the category of individuals identified in the particular statute.

Individuals who are genuinely self-employed — marketing their services at “arms length” to the market in general — have few statutory employment rights. However, it is important to make sure someone is genuinely self-employed, as there are many examples of sham self-employment, especially in sectors such as construction.

As well as being protected by general equality legislation, part-time workers and fixed-term employees are protected by specific legislation from less favourable treatment because of their employment status (see pages 58 to 61). Eligible agency workers also have specific equality rights in relation to pay, hours, holidays and some maternity rights (see pages 62-66).

Determining an individual’s employment status is not straightforward, and is becoming increasingly challenging, largely as a result of the growth of new types of irregular employment arrangements, designed to maximise flexibility for the employer at the expense of security for the worker. In its response to the 2014 Department for Business, Innovation & Skills consultation on the spread of zero-hours contracts, the TUC calls for employment status law to be reformed to ensure that all workers benefit from the same basic floor of rights at work, and for the system of enforcement to be strengthened, especially through the abolition of tribunal fees.

The box below sets out the main employment rights applying to workers and employees.

Main employment rights

Rights covering all workers

• Information about pay, notice and holiday entitlement;

• National Minimum Wage (payable to almost all workers — see Chapter 4);

• Protection against unlawful pay deductions;

• Equal pay;

• Working hours and breaks;

• Holidays;

• Right not to be refused work because of union membership;

• Right to be accompanied at a disciplinary/grievance hearing;

• Protection against discrimination on all unlawful grounds;

• Protection against detriment for whistleblowing; and

• Protection against detriment and right not to be refused work because of a blacklist.

Rights covering employees only

• Written statement of particulars;

• Statutory minimum notice;

• Protection from unfair dismissal;

• Implied contract terms (such as mutual trust and confidence);

• Time off for union duties and training;

• Time off for union activities;

• Time off for safety reps;

• Time off for public duties;

• Time off for antenatal care;

• Statutory maternity pay and leave;

• Statutory paternity pay and leave;

• Statutory adoption pay and leave;

• Parental and dependency leave;

• Right to request flexible working;

• Right to request time off for study or training;

• Protection in business transfers (TUPE);

• Redundancy pay and rights;

• Guarantee pay on layoffs; and

• Medical suspension pay.

Agency workers also have specific statutory rights (see page 62).