Can the self-employed make claims in the Employment Tribunal?
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In the UK, self employed individuals usually cannot bring claims before the Employment Tribunal.
The first place to start is determining whether the individual is an employee, worker or self-employed. In doing so, it is irrelevant whether the parties themselves agree on the employee status as Serota J stated in Levy McCallum Ltd v Middleton “If parties agree to create a horse but instead create a camel, the fact that they intended to create a horse and even call what they have created a horse is of little assistance in determining whether it is in fact a horse”.
Employment Status
Case law has shaped the criteria for determining an individual's employment status. Each case is decided based on its specific circumstances, leading to some level of unpredictability. Ultimately, only an Employment Tribunal can make a final decision on employment status for the purposes of employment rights.
In basic terms:
A worker is an individual who works under a contract where they agree "to do or perform personally any work or services for another party to the contract, whose status is not that of a client or customer".
An employee is an individual employed under a contract of employment.
If someone does not fall into either of those two definitions, they are likely self-employed.
The distinction between a worker and an employee can be unclear, but generally it is accepted that workers are not considered employees if they are free, without penalty, to accept or reject any offer of work made to them. The distinction is also mostly decided by the substitution test, which means that if the individual can send someone else on their behalf to carry out the work, they are likely to be self-employed.
Self-employed v Worker
If a self-employed individual can show that they are in fact a "worker" (rather than fully self-employed), they may be entitled to bring an employment tribunal claim for the following:
A claim for discrimination under the Equality Act 2010 based on any of these protected characteristics:
Age – Discrimination based on age, including both younger and older individuals.
Disability – Protection for individuals with physical or mental disabilities. Employers are also required to make reasonable adjustments for disabled employees.
Gender reassignment – Protection for people who are undergoing or have undergone gender reassignment.
Marriage and Civil Partnership – Protection for individuals who are married or in a civil partnership. Discrimination can occur in the workplace based on someone's marital status.
Pregnancy and Maternity – Discrimination related to pregnancy, childbirth or maternity leave is illegal. Employees have additional rights during maternity leave and upon return to work.
Race – This includes discrimination based on race, nationality, ethnic or national origin. It can apply to people of any racial background not just those from minority groups.
Religion or Belief – Protection from discrimination based on religious beliefs or philosophical beliefs as well as protection for those who have no religious beliefs.
Sex – Discrimination based on gender including discrimination between men and women.
Sexual orientation – Protection for individuals who are lesbian, gay, bisexual, or heterosexual.
A claim to address unlawful deductions from their pay.
A claim in relation to holiday pay or minimum wage.
Summary of Rights Based on Status:
Employees: Full employment rights including protection against unfair dismissal, redundancy pay, holiday pay, and statutory leave.
Workers: Limited rights such as minimum wage, holiday pay and protection from discrimination but not the full range of employee rights.
Self-employed: No employment rights, but can claim under certain conditions if classified as a worker.
Contractual Claims
Many self-employed people are not entitled to most employment rights because they are not considered employees or workers, but they may be able to take legal action through civil courts if they have a contractual dispute, such as issues over payment or terms of engagement.
Conclusion
Self-employed workers generally do not possess the same rights as employees when accessing Employment Tribunals. However, in certain cases, such as when a self-employed individual can demonstrate that they are effectively working under conditions resembling an employment relationship (e.g., via a "worker" status), they may have the right to bring claims related to issues like discrimination or unpaid wages. The distinction between employees, workers, and the self-employed is crucial in determining eligibility for Tribunal claims, with workers enjoying more protections than the truly self-employed.
Call a specialist employment lawyer
Magara Law is an employment law firm with offices in Bicester, Banbury, Reading, and Paddington, London, and serves clients nationwide.
For more information or to contact our employment law team at Magara Law, call 01869 325 883 or email roy@magaralaw.co.uk.
