Employee Worker Self-Employed
Contract of service Contract of service Contract for service
• Tax and NI deducted • S230(3) ERA 1996 - In this Act “worker” … means • May be tax benefit to
• S230(1) ERA 1996 – ‘an individual who … works under … a contract of employment’ an individual who has entered into or works being self-employed
• S230(2) ERA 1996 – ‘“contract of employment” means a contract of service … whether under … • No admin
express or implied, and (if it is express) whether oral or in writing.’ • (a)a contract of employment, or costs/NI/sick
• Ready Mixed Concrete (South East) v Minister of Pensions and National Insurance (1968) • (b)any other contract, whether express or pay/Maternity leave
• Perform the work personally, personal service is an ‘irreducible minimum implied and (if it is express) whether oral or • Stringfellow
o MacFarlane v Glasgow City Countil [2001]; James v Redcats (Brands) [2007] – can in writing, whereby the individual Resturants v Quashie
substitute if they are unable, e.g. sick undertakes to do or perform personally any [2012] – being subject
o Express & Echo Publications v Tanton [1999] – cannot substitute if they are unwilling’ work or services for another party to the to a ‘house agreement’
• Mutuality of obligations contract whose status is not by virtue of the does not mean there is
o Cotswold Developments Construction v Williams [2006] – main focus on whether contract that of a client or customer of any a contract of
there is an obligation to work and one to pay profession or business undertaking carried employment if all the
o Wilson v Circular Distributors [2006] – can still be applicable if the employer is not on by the individual; other elements are
obliged to provide work all the time • Still needs to have personal service akin to self-
o Carmichael v National Power [1999] – must be more than just mutual obligation • Clyde and Co v Bates van Winkelhof [ 2014] – a employment
o Cornwall County Council v Prater [2006] – even if they are casual, if there is a mutual partner in an LLB is a worker under s230(3)(b) • Massey v Crown Life
obligation when they are working, they may still be an employee • Being subordinate is an aid but not a Insurance [1978] – if a
• Under the control of the employer requirement of being a worker person wants to
o HMRC v Atholl House [2022] – overall control not just day-2-day • Uber BV and Others v Aslam [2021] – workers change the terms of
• Directors in the gig economy are workers their employment (e.g.
• SoS for Business, Enterprise and Regulatory Reform v Neufeld [2009] – may be an • 1) undertake work for the other party to self-employed) they
employee if there is a valid contract of service and mutuality of obligation • 2) undertake the work personally will be unable to get
o Buchan v Secretary of State for Employment [1997] – originally held that a director • 3) the other party is not a client the benefits of
with controlling shares could not be an employee as they could control their • Nursing and Midwifery Council v Sommerville employee status
employment [2022] – working on an ad-hoc basis can still be • Wright v Redrow
• Secretary of State for Trade and Industry v Bottrill [1999] – may be considered an a worker Homes (Yorkshire)
employee if they intended the company to be bought by another • James v Redcats (Brands)[2007] – being casual [2004]; Pimlico
• Autoclenz v Belcher –contract terms must be consistent and not a sham to evade or seasonal is not detrimental, even if there is Plumbers v Smith
obligations – no need to prove intent to evade no obligation when not during these seasons [2018] – labelling
• Ferguson v John Dawson & Partners (contractors) [1976] – contract judged • McMeechan v SoS for Employment someone as self-
objectively [1997] – can still be an employee during employed does not
• Only employees can get maternity leave these periods make them self-
• Only employees can bring claims for unfair dismissal and redundancy employed
,Legislation/benefit Employee (s230(1),(2)) Worker (s230(3))
Health and Safety at Work Act 1974
Working Time Regulations 1998
Maternity Leave (s71 ERA 1996)
Compulsory period of 2 weeks (s72)
Unfair Dismissal
Redundancy payment
Income Tax (Income Tax (Earnings and Pensions) Act 2003)
National Minimum Wage Act 1998
Equal Pay Act 1970
Equal Rights Act 2010
, S1 ERA 1996 statement of particulars Employment Contract (employee in breach – dismissal, employer in
breach – constructive dismissal)
• Must be written (s1(1)) and given at the start of
employment (s1(2)) • Can be written or oral (if oral must be legitimate and not ‘wishful thinking’
(Blue v Ashley [2017]), Conditions can be amended by the employer with
• Needs to contain reasonable notice (Cadoux v Central Regional Council [1986])
• (3)(a) names of employer and worker • Express terms (must be certain (Judge v Crown Leisure [2005]))
• (3)(b) date of first employment • Will be in the s1 statement, Job offer, Job specification, Any oral
discussion in the interview
• (3)(c) date on which the employee’s period • A unilateral change to pay or contractual benefits is always a
of continuous employment began fundamental breach (Cantor Fitzgerald International v Callaghan and
• (4)(a) Rate of renumeration Others [1999]) unless they give 1 months’ notice (s4)
• (4)(b) intervals when renumeration was paid • Harlow v Artimes [2008] – unilaterally changing a term but not
telling the employee does not mean they have affirmed it
• (4)(c) terms relating to hours including (i) • If a term is incorrect – can apply to ET who can confirm/amend/replace
hours, (ii) days, and (iii) variability of hours term – if employer does not do so they can be fined (Schedule 5)
• (4)(d) (i) holiday and pay, (ii) incapacity due
• Statutory implied terms
to sickness/injury and any pay, (iii) pension
• Working Time Regulations 1998, National Minimum Wage Act 1998,
• (4)(e) length of notice Health and Safety at Work Act 1974, Equal Pay Act 1970
• (4)(f) title and description of job • Must be a term, not a code of practice (Wandsworth London Borough
• (4)(g) if not permanent, period Council v D’Silva [1998]; Grant v South West Trains [1998]) – see practice
• (4)(h) place of work and customs
• Luke v Stoke on Trent City Council [2007] – in exceptional circumstances,
• Applies to employees and workers can be asked to do something not in their contract
(Employment Rights (Miscellaneous
Amendments) Regulations 2019 – from
6/04/2020)
• If they have a written contract, it is likely to
cover what they need under s1
Contract of service Contract of service Contract for service
• Tax and NI deducted • S230(3) ERA 1996 - In this Act “worker” … means • May be tax benefit to
• S230(1) ERA 1996 – ‘an individual who … works under … a contract of employment’ an individual who has entered into or works being self-employed
• S230(2) ERA 1996 – ‘“contract of employment” means a contract of service … whether under … • No admin
express or implied, and (if it is express) whether oral or in writing.’ • (a)a contract of employment, or costs/NI/sick
• Ready Mixed Concrete (South East) v Minister of Pensions and National Insurance (1968) • (b)any other contract, whether express or pay/Maternity leave
• Perform the work personally, personal service is an ‘irreducible minimum implied and (if it is express) whether oral or • Stringfellow
o MacFarlane v Glasgow City Countil [2001]; James v Redcats (Brands) [2007] – can in writing, whereby the individual Resturants v Quashie
substitute if they are unable, e.g. sick undertakes to do or perform personally any [2012] – being subject
o Express & Echo Publications v Tanton [1999] – cannot substitute if they are unwilling’ work or services for another party to the to a ‘house agreement’
• Mutuality of obligations contract whose status is not by virtue of the does not mean there is
o Cotswold Developments Construction v Williams [2006] – main focus on whether contract that of a client or customer of any a contract of
there is an obligation to work and one to pay profession or business undertaking carried employment if all the
o Wilson v Circular Distributors [2006] – can still be applicable if the employer is not on by the individual; other elements are
obliged to provide work all the time • Still needs to have personal service akin to self-
o Carmichael v National Power [1999] – must be more than just mutual obligation • Clyde and Co v Bates van Winkelhof [ 2014] – a employment
o Cornwall County Council v Prater [2006] – even if they are casual, if there is a mutual partner in an LLB is a worker under s230(3)(b) • Massey v Crown Life
obligation when they are working, they may still be an employee • Being subordinate is an aid but not a Insurance [1978] – if a
• Under the control of the employer requirement of being a worker person wants to
o HMRC v Atholl House [2022] – overall control not just day-2-day • Uber BV and Others v Aslam [2021] – workers change the terms of
• Directors in the gig economy are workers their employment (e.g.
• SoS for Business, Enterprise and Regulatory Reform v Neufeld [2009] – may be an • 1) undertake work for the other party to self-employed) they
employee if there is a valid contract of service and mutuality of obligation • 2) undertake the work personally will be unable to get
o Buchan v Secretary of State for Employment [1997] – originally held that a director • 3) the other party is not a client the benefits of
with controlling shares could not be an employee as they could control their • Nursing and Midwifery Council v Sommerville employee status
employment [2022] – working on an ad-hoc basis can still be • Wright v Redrow
• Secretary of State for Trade and Industry v Bottrill [1999] – may be considered an a worker Homes (Yorkshire)
employee if they intended the company to be bought by another • James v Redcats (Brands)[2007] – being casual [2004]; Pimlico
• Autoclenz v Belcher –contract terms must be consistent and not a sham to evade or seasonal is not detrimental, even if there is Plumbers v Smith
obligations – no need to prove intent to evade no obligation when not during these seasons [2018] – labelling
• Ferguson v John Dawson & Partners (contractors) [1976] – contract judged • McMeechan v SoS for Employment someone as self-
objectively [1997] – can still be an employee during employed does not
• Only employees can get maternity leave these periods make them self-
• Only employees can bring claims for unfair dismissal and redundancy employed
,Legislation/benefit Employee (s230(1),(2)) Worker (s230(3))
Health and Safety at Work Act 1974
Working Time Regulations 1998
Maternity Leave (s71 ERA 1996)
Compulsory period of 2 weeks (s72)
Unfair Dismissal
Redundancy payment
Income Tax (Income Tax (Earnings and Pensions) Act 2003)
National Minimum Wage Act 1998
Equal Pay Act 1970
Equal Rights Act 2010
, S1 ERA 1996 statement of particulars Employment Contract (employee in breach – dismissal, employer in
breach – constructive dismissal)
• Must be written (s1(1)) and given at the start of
employment (s1(2)) • Can be written or oral (if oral must be legitimate and not ‘wishful thinking’
(Blue v Ashley [2017]), Conditions can be amended by the employer with
• Needs to contain reasonable notice (Cadoux v Central Regional Council [1986])
• (3)(a) names of employer and worker • Express terms (must be certain (Judge v Crown Leisure [2005]))
• (3)(b) date of first employment • Will be in the s1 statement, Job offer, Job specification, Any oral
discussion in the interview
• (3)(c) date on which the employee’s period • A unilateral change to pay or contractual benefits is always a
of continuous employment began fundamental breach (Cantor Fitzgerald International v Callaghan and
• (4)(a) Rate of renumeration Others [1999]) unless they give 1 months’ notice (s4)
• (4)(b) intervals when renumeration was paid • Harlow v Artimes [2008] – unilaterally changing a term but not
telling the employee does not mean they have affirmed it
• (4)(c) terms relating to hours including (i) • If a term is incorrect – can apply to ET who can confirm/amend/replace
hours, (ii) days, and (iii) variability of hours term – if employer does not do so they can be fined (Schedule 5)
• (4)(d) (i) holiday and pay, (ii) incapacity due
• Statutory implied terms
to sickness/injury and any pay, (iii) pension
• Working Time Regulations 1998, National Minimum Wage Act 1998,
• (4)(e) length of notice Health and Safety at Work Act 1974, Equal Pay Act 1970
• (4)(f) title and description of job • Must be a term, not a code of practice (Wandsworth London Borough
• (4)(g) if not permanent, period Council v D’Silva [1998]; Grant v South West Trains [1998]) – see practice
• (4)(h) place of work and customs
• Luke v Stoke on Trent City Council [2007] – in exceptional circumstances,
• Applies to employees and workers can be asked to do something not in their contract
(Employment Rights (Miscellaneous
Amendments) Regulations 2019 – from
6/04/2020)
• If they have a written contract, it is likely to
cover what they need under s1
