Employment status and rights update
The rights that workers have in law with regard to pay, leave and working conditions are dependent on their employment status. These rights are designed to protect individuals, most are compulsory, and usually they cannot be ‘got around’ by asking workers to sign them away as part of an employment contract.
Businesses should already be aware of off-payroll working IR35 legislation which seeks to prevent employers and workers from avoiding their tax obligations by incorrectly designating workers as self-employed. This has been big news in recent years with the government taking a firm stance against this status being used to avoid tax obligations, and providing an online tool so that hirers and workers can be sure that they are not abusing the system before entering into an off-payroll arrangement. However, the issue of employment rights can be more complex than just whether someone is employed or self-employed.
Take the recent case of Brazel v The Harpur Trust, where a visiting music teacher employed by a school on a permanent contract but working term-time only successfully won her claim against her school, who wrongly calculated her holiday pay on a pro-rata basis. This case was successfully defended all the way to the Supreme Court, with Mrs Brazel winning her case. This judgement now sets a precedent that all workers are entitled to 5.6 week’s paid holiday, calculated on their average earnings over the preceding 52 weeks, and will have impact on all sessional and part-time workers on zero-hours, term-time only, or part-year arrangements, where employers may have been incorrectly calculating holiday pay based on previous ACAS guidance.
It is clear from the above case that employment rights can be misinterpreted, and the government has recently issued new guidance which complements the existing GOV.UK Employment status guidance, and provides practical advice and examples on:
- Employment status and how it determines the employment rights individuals are entitled to and for which employers are responsible.
- Factors determining an individual’s employment status.
- Special circumstances and recent developments in the labour market.
- How employment status should be determined for different sectors.
- Where to go for further information.
There are 2 additional pieces of guidance for:
- Individuals, to help them understand their employment status so that they know their rights, can have informed discussions with their employer about them, and can take steps to claim them and have them enforced where necessary.
- Employers or engagers, to help them understand individuals’ employment status so they comply with the law, helping ensure individuals receive the rights they are entitled to and avoid unnecessary disputes and associated costs.
You can find more information here: Employment status and employment rights – GOV.UK (www.gov.uk)