So what is a worker?
Generally speaking, a worker is an individual who has agreed to work, is working or, where the employment has ceased, has worked under:
- a contract of employment; or
- any other contract, oral or written, under which the individual agreed to personally carry out work or services for the other party, provided that they are not working or providing the services as a profession or business undertaking.
This definition will cover many freelancers, consultants and contractors. However, it does not apply to the genuinely self-employed. There is often a thin line between a self-employed individual and a freelancer, who is likely to be a worker. Self-employed schedule D building workers, under a subcontractor's agreement, are an exception as they have been held to be workers and are entitled to paid holiday.
The Sex Discrimination Act, the Race Relations Act and the Disability Discrimination Act use a broader definitions of who counts as a worker, extending to certain self-employed people. All these acts state that the requirement not to discriminate extends to workers provided through a third party such as a labour agency.
What rights do workers have?
Some of the key areas of protection applying to workers, but not the self-employed, are the right:
- not to be discriminated against on grounds of sex, marital status, race or disability
- not to have unlawful deductions made from wages
- to four weeks' paid annual holiday and the right not to be required to work longer than an average 48-hour week without their express consent
- to be paid at least the national minimum wage
- not to be unfairly dismissed for, or suffer detriment for, making a protected disclosure (however, workers are excluded from the general right not to be unfairly dismissed for any reason)
- to be accompanied at certain disciplinary and grievance hearings
- to be treated, as a part-time worker, no less favourably than a full-timer.
What can be done if rights are breached?
If an employee or worker believes that their rights may have been breached, the first course of action is to raise the matter with the employer, preferably in writing. If the matter is not resolved it may be necessary to take legal advice – but most matters can be resolved without having to go to court.
By Michael Archer, partner in solicitor Beale & Company