Rights of workers versus employees

This is an important distinction in employment law, and getting it right matters because the rights available to you depend heavily on which category you fall into.

The law in England and Wales recognises three main categories: employee, worker, and self-employed. Worker is the middle category. You have fewer rights than an employee but significantly more protection than someone who is genuinely self-employed.

Your status as a worker:

A worker is someone who has a contract to do work personally for another party, where that other party is not a client or customer of a business you run. This is defined in section 230(3) of the Employment Rights Act 1996. The key features are that you perform work personally and there is some element of subordination or control, but the relationship falls short of a full contract of employment.

Rights you do have as a worker:

1. National minimum wage and national living wage under the National Minimum Wage Act 1998.
2. Protection against unlawful deductions from wages under Part II of the Employment Rights Act 1996.
3. Statutory paid annual leave of 5.6 weeks per year under the Working Time Regulations 1998.
4. Rest breaks and limits on weekly working hours under the same Regulations.
5. Protection from discrimination under the Equality Act 2010, which applies to workers as well as employees.
6. The right to receive an itemised pay statement, extended to workers from April 2019.
7. Protection for whistleblowing under the Employment Rights Act 1996, Part IVA.
8. The right to be enrolled into a workplace pension under auto-enrolment rules.
9. Protection against less favourable treatment for part-time work under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000.
10. Protection under health and safety legislation.

Rights you do not have as a worker:

You do not have the right to claim ordinary unfair dismissal. You do not have the right to a statutory redundancy payment. You are not entitled to statutory minimum notice periods. You do not have the right to request flexible working, though the Employment Relations (Flexible Working) Act 2023 still applies only to employees. You are not entitled to statutory sick pay as a worker unless you also meet the separate definition of employee for SSP purposes, which is slightly different from the general employment law definition. You are not entitled to statutory maternity, paternity, adoption, shared parental, or parental bereavement pay or leave, as these are reserved for employees.

Where it gets complicated:

The legal distinction between worker and employee is not always clear-cut, and many people who are told they are workers or even self-employed are in reality employees. The courts and tribunals look at the reality of the working relationship, not just the label in the contract. Key factors include the degree of control the other party has over your work, whether you have a mutual obligation to provide and accept work, whether you can send a substitute instead of doing the work yourself, and the overall nature of the arrangement.

The Supreme Court confirmed in Uber BV v Aslam (2021) that the purpose of the worker category is protective, and tribunals should look at the reality of the arrangement rather than the contractual documentation.

If you believe you are being wrongly classified as a worker when you are in fact an employee, you can bring a claim to the employment tribunal to have your status determined.

Practical considerations:

If you are concerned that your rights are not being respected, or you think you may actually be an employee rather than a worker, it is worth doing the following:

1. Gather all relevant documents including your contract, any written terms, correspondence about how the work is arranged, payslips, and evidence of the day-to-day reality of the relationship.
2. Check whether the way you actually work matches the label you have been given.
3. If you believe there is a specific breach, such as non-payment of holiday pay or wages below the minimum wage, consider raising this with your employer or engager first.
4. If that does not resolve it, you may contact ACAS for early conciliation, which is a mandatory step before bringing most employment tribunal claims.
5. Time limits for tribunal claims are generally three months less one day from the act complained of, so do not delay.

If you can tell me more about your specific situation, I can give you a more tailored answer about which rights are likely in play and the best way to approach things.