Employee or Self-employed

General

The difference between employee and self-employed is very important as most employment rights apply only to employees.

The fact that you have a CIS4 card does not automatically mean you are self-employed. Your true status is a matter of law and is determined by considering all the relevant circumstances surrounding your employment.

There are three elements which must be present in every contract of employment. These form the irreducible core of the employment contract of employment without which a contract cannot be regarded as a contract of employment:

• The contract must impose an obligation on a person to provide work personally;
• There must be an obligation on the employer to offer work and for the employee to accept that work; and
• The worker must be under the control of the employer

Factors pointing towards employee status

Common terms that point you being an employee are:

• you do not risk your own money and there is no possibility that you could lose money on the job
• you are paid by the hour, day, week or month
• you have no business organisation, such as a yard, materials or workers
• you supply only your own small tools
• the person you are working for has the right to tell you what to do, and where and when, even if this rarely happens in practice

Factors pointing towards self-employed status

Common terms that point to you being genuinely self-employed are:

• you provide materials or plant for the job
• you bid for the job and carry the cost if your price is too low
• you have the right to hire others who answer to you and are paid by you
• you are paid an agreed sum no matter how long the job takes
• you can decide how and when the job is done within an overall deadline
• you work for a large number of different people during the course of a year

Determining employment status

The law is concerned with fact, and will not be deceived by any mechanism your employer might use to hide your true employment status, such as "selling" you materials or making you set up a limited company.

Thousands of "self-employed" building workers should be categorised as employees, and would therefore be entitled to full employment rights, such as:

• protection from unfair dismissal
• the right to notice and redundancy pay
• statutory sick pay
• guaranteed earnings and
• holiday pay
• paternity pay

However, inconsistencies within case law means that proving employee status can be difficult in a tribunal hearing.

Any time spent working on CIS4 card with your present company should count as continuous service once you go back on the books. Make sure your contract of employment includes this time as it will affect your rights.

If you believe you are an employee, or that you are being denied any employment rights by your employer, contact your UCATT regional office immediately.

Your employer cannot make you sign a waiver stating that you are not entitled to holiday pay. If this happens contact your UCATT regional office.

Please include your membership number or e-mails will not be answered. There are very strict time limits for submitting applications to an employment tribunal. The deadline for most applications is 3 months from the incident complained about, except in redundancy cases or in equal pay claims when it is 6 months.

Check the disciplinary and grievance section for more information on time limits.

For more information contact your regional office , quoting your UCATT membership number.