When is a worker an employee?

In a recent landmark case that was hailed the ‘first public sector gig economy victory’, a group of art educators sacked by the National Gallery established “worker” status, despite the Gallery’s claim that they were self-employed.

Despite the fact that the claimants had been registered as employees for tax purposes since 1999, it was not a decisive factor in the case, though it was considered.

The 27 artists and art lecturers said they worked regularly in their decades’ worth of time with the Gallery, were paid through the company payroll, were taxed at source and had been required to attend training sessions and appraisals. The tribunal ruled that it was “unsustainable” for the Gallery to call the workers self-employed.

Legal opinion

Establishing an employee’s employment status is crucial: it affects their rights, benefits and protection. Employers should be aware that the criteria HMRC use versus that which an Employment Tribunal use to ascertain an individual’s employment status are separate and distinct, even if they may seem similar.

As an employer, you should also consider how the status of the individuals working for you, whether as self-employed freelancers, workers or employees, affects the business.