Challenging ‘worker’ contracts

Taking up individual cases

It can be very difficult for a rep to challenge an employer over their use of contracts for staff that the employer claims are not employees but merely ‘workers’ on an ‘as-and-when’ contract. In the abstract, such a contract is lawful, and comes with no employment rights. In practice, many staff who would qualify for employment status are still told that they have been engaged as workers, not employees.

Staff in this category are usually treated very badly. They are usually denied elementary rights by the employer, most importantly, denying them the right to any job security. They may also be denied sick pay, maternity pay, progression, and other service-related rights. And they may be told that the employer has no obligation to hear a grievance, and if they raise a complaint they may be dismissed.

For obvious reasons it is extremely difficult to take up a member’s case if they are terrified of being dismissed for raising a complaint. However, there are ways to get the employer to recognise the employee’s rights and then to hear their concerns.

Consider the situation where someone is taken on as a worker, a worker contract is issued to them, but they begin to realise that they should be properly considered an employee.

The first question to consider is whether they would have a case. Here are two things to look out for:

  • Work that was initially considered to be occasional has become regular. A regular pattern of work is the first sign that a worker is engaging in employment proper. Does the contract come with a notice period? If so, this may signal that the employer is actually evaluating their work over time.
  • Other staff they work alongside performing similar duties are issued with employment contracts. Leaving aside whether they might have a legal claim under the Part Time Workers Regulations, this would appear to indicate that the employer can offer an employment contract if it so wished. It would therefore struggle to show that in denying an employment contract to this worker, their actions were fair and reasonable.

If a staff member wins employment recognition they should be offered an employment contract that is backdated to the first day that they started work. See below.

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How can we decide that a worker is really an employee?

Employment tribunals use a number of tests, but they principally boil down to the same key points, usually called the “irreducible minima” of employment. These are

  • Personal service: The worker, and no-one else, performs the duties for which they are paid. Compare this situation with a plumbing firm who may substitute another worker to fix your tap.
  • Control: The worker submits to the control of the employer as to when and where the service is delivered. In the case of teachers, for example, the timetabling of classes would demonstrate this control.
  • Mutuality of obligation: This is perhaps the most difficult to explain, but in brief it means that the worker’s output is evaluated over time and they are held accountable for it over the course of the contract. Sometimes this is also referred to as “integration”.

All of these must be true to qualify. See also employment status vs. worker status.

The rep can write to the HR department and ask why the staff member has not been given a contract of employment.

The employer is entitled to deny the claim, by disputing, for example, that their work implies a mutuality of obligation. But they cannot dismiss the staff member for querying their contract (see below).

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Can an employer dismiss a worker or force them to reapply for their job?

No. However, most people do not realise this. The first reaction of many HR departments is often to say that they can only offer an employment contract if the staff member goes through external competition for their own job. This carries with it the risk that the employee is dismissed and replaced with another staff member, who is then offered an employment contract.

Faced with this, most staff would shut up and not challenge their contract!

HR might assert this, for instance, because the work was initially offered informally, and their Recruitment Policy says that posts must be properly advertised.

However, it is unlawful to dismiss someone because they complained about being issued the wrong contract. Any complaint by an employee about not being issued a minimally compliant employment contract is protected in law as a “Day 1 right” to an accurate statement of particulars. This includes, naturally, a situation where the employment status itself is contested (indeed this is the most common use of this rule). BIS says

What if an employee is dismissed for seeking to enforce his or her rights?
Dismissal of an employee for seeking to enforce the rights described in this booklet, either by making a reference to an employment tribunal or by alleging that the employer has infringed those rights, is unlawful. An employee dismissed in these circumstances is entitled to make a complaint of unfair dismissal to an employment tribunal, regardless of length of service. This applies whether or not the employee did in fact qualify for the rights in question and whether or not they had in fact been infringed, provided that he or she acted in good faith. » Written statement of employment particulars, PL700, DTI 1999

What this means is that once the employer accepts that the worker in question is an employee, their obligation is simply to offer them the correct contract. They must not place them at risk of dismissal (never mind actually dismissing them) for making this request.

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