It is important for an employer to establish the employment status of a member of staff as many of the rights referred to in this toolkit apply only to employees.
For example, only employees are entitled to:
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Protection from detriment and dismissal under the Employment Rights Act 1996
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Statutory Maternity Leave
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Statutory Paternity Leave
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Parental Leave
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Statutory Adoption Leave
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Time Off For Dependants
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The right to request flexible working
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Time off for antenatal care
In certain cases, it can be very difficult to establish who is and who is not an employee. An “employee” is defined in the Employment Rights Act 1996 as “an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment”. Relevant characteristics which tend to suggest an employer-employee relationship include:
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Where an individual works under the control of the employer
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Where an employer is obliged to offer the individual work and the individual is obliged to accept it
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Where tax and National Insurance contributions are deducted through PAYE
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Where an individual is expected to carry out his or her work themselves
The definition of an employee for Statutory Maternity Pay and Statutory Paternity Pay purposes is wider and individuals who have tax and National Insurance contributions deducted from their earnings through PAYE are likely to be entitled to such payments.
If you have any queries about a member of staff’s entitlement, you should contact the Advisory and Conciliation Arbitration Service (Acas) on 08457 47 47 47.