Are ‘self employed’ consultants really employees?

10 October 2014: Are ‘Self Employed’ consultants really employees?

Many organisations engage self-employed consultants to carry out work for them, sometimes over a period of years.

Problems can arise when business wants to dispense with their services, as whatever the contract says, an Employment Tribunal will look at the actual nature of the relationship. The main tests that the Tribunal applies are:

1. Personal service – can the consultant send someone else instead to do the work?
2. Mutuality of obligation – is the business obliged to provide the consultant with work, and is the consultant obliged to do it?
3. Control – Does the business control what the consultant does, including when and how?

Many people feel forced into accepting a ‘self-employed’ contract, and are denied employment rights as a result. Furthermore there is a separate test of ‘worker’ for paid holiday under the Working Time Regulations, for which the test is lower.

This week the government has launched a review to help clarify and potentially strengthen the employment status of workers” and which they acknowledge as a very complex area of law, which it seeks to simplify and clarify, both for employers and employees. See the press release.

Whether any changes are implemented this side of the 2015 general election remains to be seen. Those consultants who provide services via their own limited companies or via agencies, may still have trouble claiming employee and worker rights.

Reculver solicitors is a firm of solicitors based in Holborn, central london, specialising in all aspects of employment law. Call 0207 118 0950 for a confidential chat about your employment situation today or visit our website www.reculversolicitors.co.uk.