Byline: CHRIS BALL
OF all the points employment lawyers pore over, the issue of employee status is often at the heart of the matter. What is a worker? What is an employee? Esoteric questions, but your job and employment protection can depend on the answers.
"Employee" is a relatively modern term, but the legal concept goes back to the servant, with a contract of service to his employer. If the servant knocked down someone when driving the master's vehicle on the master's business, it was the master who would be held responsible. The lawyers call this "vicarious liability" and it still applies today; foul something up at work and, for employees, it is the firm that carries the can. Others, however, may not be so lucky.
Oddly enough, the courts sometimes decide people are not employees for the purposes of employment rights, while the National Insurance authorities say they are employees when it comes to paying NI contributions. The problem is that different definitions of an "employee" can be used for dif ferent purposes.
Some years ago, in the face of widespread statements by people claiming fake selfemployed status, the Inland Revenue staff union added its voice to the campaign. It published evidence of people who claimed to be selfemployed for their own benefit, including barbers who claimed to rent their barbers' chairs from shop owners and waiters who said they hired their restaurant tables and worked for "fees" rather than wages. It all worked as a tax dodge, and there were many other creative methods besides.
Such scams still go on.
Recently, the construction union UCATT and the Institute of Employment Rights published a report showing the widespread use of bogus self-employed status in the building industry. Dr Mark Harvey, an academic researcher who wrote the report, estimates that over the years it has cost the Treasury tens of millions of pounds in lost tax revenue.
Many of the most blatant loopholes have been closed, which is good for workers as well as the Exchequer. To make life simpler for all involved, the tribunals and courts said, in effect, if someone looked like an employee and sounded like an employee, they probably were an employee, no matter how they described themselves.
As a basic rule of thumb, if you can send someone else along to do your job, it means you are not an employee.
Employees do not provide their own equipment, do not have helpers whom they can hire and fire at will, do not have responsibility for investing money in the company or enterprise, and do not run financial risks, other than that of being out of work in the event of their job folding up.
In one case, a scaffolder had given a false name to his company in a bid to avoid tax; both he and the firm took the view that he was self-employed. …