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Employment status
[ch 2: pages 33-34]Most statutory employment rights depend on someone’s “employment status”. In other words, they depend on whether that person is an “employee”, a “worker” or genuinely “self-employed”. The law governing employment status is extremely complex and as a result, a growing number of workers are discovering, usually once it is too late, that they have lost out on basic employment rights due to the way in which the work relationship has been structured.
Statutory employment rights are rights that derive from a particular Act of Parliament or other piece of legislation. Contractual rights can be enforced by anyone with a contract (whether or not in writing), but statutory rights are only available to the category of individuals identified in the particular statute.
Individuals who are genuinely self-employed are neither workers nor employees. The genuinely self-employed are in business on their own account. They offer their services at “arms-length” to their own customers and they take the business risk of failure and the financial rewards of success when the business grows. They have few statutory employment rights. Workers in some sectors, for example, construction, have experienced widespread use of “false self-employment” to avoid basic employment rights (see below).
As well as explaining the difference between employees, workers and the self-employed, this chapter outlines some of the other work arrangements reps may encounter, including:
• umbrella companies;
• personal service companies;
• zero hours contracts;
• part-time workers;
• homeworkers;
• volunteers and interns;
• young workers;
• apprentices;
• children;
• temporary (fixed-term) employees;
• agency workers;
• crown employees;
• posted workers; and
• employee shareholders.
More detailed information can be found in the LRD booklet Casualisation at work — a guide for union reps, 2014 (www.lrdpublications.org.uk/publications.php?pub=BK&iss=1733).
The TUC has called for employment status law to be reformed to ensure all workers benefit from the same basic floor of rights at work, for clear information to be provided and for the system of enforcement to be strengthened, especially through the abolition of tribunal fees (see Chapter 13).
The box below sets out the main employment rights that apply to employees, workers and agency workers.
Main employment rights in summary
Rights available to employees and workers
• Information about pay, notice and holiday entitlement (see Chapter 4);
• National Minimum Wage (see Chapter 4);
• Statutory Sick Pay (see Chapter 8);
• Statutory Maternity Pay (and other forms of statutory parental pay — see Chapter 9);
• Pension auto-enrolment rights (see Chapter 4);
• Protection against unlawful pay deductions (see Chapter 4);
• Working hours, rest breaks and a 48-hour week (see Chapter 4);
• Holidays (see Chapter 4);
• Protection from victimisation for being a union member or engaging in union activities at an appropriate time (see Chapter 5);
• Right to be accompanied at a disciplinary/grievance hearing (see Chapters 5 and 10);
• Protection from discrimination (see Chapter 7);
• Data protection rights, including the right to make a data subject access request (see Chapter 4);
• Protection against detriment for whistleblowing (see Chapter 4);
• Protection against detriment and right not to be refused work because of a blacklist (see Chapter 5); and
• Protection of a zero hours worker against detriment if they work for another employer in breach of a contract term prohibiting this (Chapter 2).
Rights available to employees only
• Written statement of particulars (see Chapter 3);
• Statutory minimum notice (see Chapter 10);
• Protection from unfair dismissal (see Chapter 10);
• Implied contract terms such as mutual trust and confidence (see Chapter 3);
• Express contractual rights in the employment contract (see Chapter 3);
• Reasonable paid time off for trade union reps for union duties and training where a union is recognised (see Chapter 5);
• Reasonable paid time off for union learning reps where a union is recognised (see Chapter 5);
• Reasonable unpaid time off for members to engage in union activities where a union is recognised (see Chapter 5);
• Reasonable paid time off for safety rep duties and protection from dismissal for acting as a safety rep (see Chapter 5);
• Time off for public duties (see Chapter 4);
• Statutory maternity leave rights (as well as other forms of parental leave explained in Chapter 9);
• Unpaid dependency leave (see Chapter 9);
• Right to request flexible working (see Chapter 9);
• Right to request time off for study or training (see Chapter 4);
• Protection in business transfers (TUPE) (see Chapter 12);
• Redundancy pay and rights (see Chapter 11);
• Guarantee pay on layoffs or short time working (see Chapter 11); and
• Medical suspension pay (see Chapter 9).
Rights available to temporary agency workers
As well as the basic rights available to all “workers”, temporary agency workers have additional rights explained on page 56 of this chapter.
Many of the rights listed in this table depend on service length and/or earnings. See the appropriate Chapter of this guide for detailed information about eligibility.