Who is an employee?

Certain claims ie. unfair dismissal, breach of contract require the claim to be brought by an ’employee’ (as opposed to a self-employed person, a worker or a casual worker). Other claims, such as discrimination claims, can be brought by other types of workers (such as agency workers).

Contract of Employment

An employee is someone who works under a Contract of Employment.

If there is no agreement between the parties as to whether someone was an employee, when deciding whether a Contract of Employment exists, the Employment Tribunal can consider the following factors:

• The amount of control the employer had over the employee, for example in relation to working hours and obeying orders
• How integrated the employee is within the organisation, for example is he/she subject to procedures, does he/she receive benefits
• How independent is the employee from the organisation, for example is he/she in business on his/her own account, does he/she provide his/her own equipment
• Is there mutuality of obligation in that the employer is expected to provide work and the employee is expected to accept and perform the work offered

The above list is not exhaustive; it gives an idea of how an Employment Tribunal would try to assess the position of an employee where somebody is attempting to deny that they were employed.

Case law has established that an unfettered discretion to substitute someone else to do the job is fatal to that person being an employee. Further, if there is a fettered discretion to substitute or requires the employers approval, then this is not fatal to the person being an employee.

Many employees have a written contract. This contract will set out specific tasks, responsibilities and standards that the employee must meet.

Over and above any written Contract of Employment, the Law imposes a number of implied obligations on an employee, and these include:

• A duty to be honest
• A duty of fidelity (meaning a duty to act in good faith)
• A duty to carry out lawful instructions from the employer
• A duty not to disclose confidential information of the employer
• A duty to act with reasonable care and skill
• A duty not to set up in competition with the employer

Again, the above list is not exhaustive. It is used by an Employment Tribunal to identify a relationship between the parties and the obligations thereon.

HMRC have launched a tool to assist people in deciding their employment status HMRC employment status tool.