Who is (and is not) an employee

It is important 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:

  • Protection from detriment and dismissal under the Employment Rights Act 1996
  • Statutory Maternity Leave
  • Statutory Paternity Leave
  • Parental Leave
  • Statutory Adoption Leave
  • Time Off for Dependents
  • The right to request flexible working
  • Time off for antenatal care
  • Health and safety protection including the right to suitable alternative work and/or suspension on full pay.

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:

  • Where an individual works under the control of the employer
  • Where an employer is obliged to offer the individual work and the individual is obliged to accept i
  • Where tax and National Insurance contributions are deducted through PAYE
  • Where an individual is expected to carry out his or her work themselves

The definition of an employee for Statutory Maternity Pay, Statutory Adoption Pay and Statutory Paternity Pay purposes is wider and considers anyone who has tax and National Insurance contributions deducted from their earnings through PAYE to be an employee for SMP, SAP and SPP purposes. This means that most workers, apart from those who are genuinely self-employed and pay their own tax and National Insurance, can claim SMP, SAP or SPP providing they meet the usual qualifying conditions.

All workers are protected against sex discrimination and have the right to a health and safety risk assessment.

The Agency Worker’s Directive, which the government is required to transpose into UK law by December 2011, will introduce further pregnancy and maternity rights for agency workers.

If you have any queries about a member of staff’s entitlement, you should contact the ACAS on 0845 7 47 47 47 or visit the ACAS website.

Last Updated: 29 Oct 2009