Worker status conveys rights on individuals that do not exist for those who are genuinely self employed or a separate trading entity.
These include rights to:
- National Minimum Wage
- Rest breaks and annual leave
- Protection against deductions from pay
- Maternity, Paternity and Adoption pay
- Protection from less favourable treatment on the basis of part time working
- Statutory Sick Pay
- Protection from less favourable treatment because of having made a protected disclosure (i.e. whistle blowing)
- Protection from discrimination
Often businesses will contract with individuals on a ‘self employed’ or ‘contracted out’ basis and agree terms that are compatible with this (and incompatible with the individual being a worker).
So if an organisation and an individual enter into a contract that expressly provides:
- The individual is a ‘contractor’
- The individual is in business on his own account
- The individual may send another person to do the work
- The individual may hire assistants to do the work
- The individual is financially responsible for any assistant/s or subcontractor
- The individual may choose to undertake other work
- There is not entitlement to holiday or sick pay
- The individual must pay his own tax
Is this sufficient to ensure that the individual is a ‘self employed contractor’?
The answer is ‘not necessarily’!
Mr Justice Mitting decided in Boss Projects LLP v Bragg that no matter how watertight the contract may be, if in reality its provisions were not intended to be used, then despite express contractual provisions such as these, the individual may still be a worker.