I regularly engage individuals on a casual basis to carry out work for my company.  Some are now saying that they should have certain rights and payment from me.  I have always considered that they are self-employed.  How do I handle it?

Whether individuals are self-employed, company employees or workers depend on a number of factors and the true nature of their relationship with the company.  The exact nature of that relationship will determine what rights the individuals have and what your obligations to them may be.

It is often thought that the determining factor in considering whether individuals are employees will be the documentation which surrounds that relationship.  The existence, or indeed absence, of a written contract is helpful in determining whether the individuals are employed, self-employed or workers.  You do not say if there is written documentation surrounding the relationship you have with these individuals but even if there was, the existence of a contract itself, whilst helpful, is not absolutely determinative in assessing whether your individuals are indeed self-employed.

Other factors must also be considered including the element of control you have over the nature of the work carried on by the individuals, e.g. when the work is carried on; whether you have an obligation to actually provide them with work and if you do, whether they have a mutual obligation to undertake the work on your behalf and is there a sanction if work is refused.  Also, you should consider if they or the company assume any risk for the business; how they are paid; whether these individuals are integrated into the operation of the company and also, if you provide them with tools to carry out the job they undertake for you.

The recent decision of Uber in England may have prompted the individuals’ query with you.  You will be aware of the taxi firm which operates through an App which allows for booking private hire taxis.  It’s likely that in determining whether an individual is self-employed, employed or a worker, a tribunal may be influenced by this recent decision.  In addition to many factors to be examined in determining whether these individuals are self-employed or indeed, the company’s employees, or workers, you should examine how the company’s relationship with them actually operates in practice, rather than any particular name given to it.  In the Uber case the Judge held that the Claimants, as taxi drivers, were not employed by Uber but rather were workers.  The notion of a “worker” is an intermediate status between someone who is genuinely self-employed providing services and someone who is directly employed by a company.  A worker does, however, have certain rights, including the right to receive the national minimum wage, the right to paid leave, maximum working week and the right not to be discriminated against on protected grounds.  A worker does not have unfair dismissal or redundancy rights.  It could be that the individuals you mention are workers with such rights rather than employees.

I suggest you look at all the elements of the relationship you currently have with these individuals who provide services to you on a casual basis. It could be they fall into one of 3 categories- self-employed as you suggest; directly employed by the company which allows them full employment rights and protection or workers. You should review particularly how you recruited them, how your work is allocated and managed, what control you exercise over the individuals and how payment is made to them.  This is a fact-specific, complex area and usually, not with a ready answer without a full examination of all matters surrounding your relationship with these individuals.