Employment law status
Understanding the status of your personal assistant (PA)
What is employment law status?
Is it the same as tax employment status?
What are the different types of employment status?
What is a 'worker' – an example
Who decides employment law status?
An important legal case
Where can I find more information?
The employment law status of your PA determines the rights that they have and the responsibilities you have towards them in employment law.
Employment law status is different from tax employment status. It is possible that your PA may have a different status for employment law purposes than for tax purposes. It is important that you check carefully the status for each. We explain more about the tax employment status and how to decide this in respect of your PA in our tax employment status section.
For tax there are only two types of status – employed and self-employed. For employment law there are three types of status that are likely to be relevant:
A ‘worker’ is basically someone who undertakes to do or perform personally any work or services and normally can’t send someone in their place. Their contract is not with their own client or customer, but with someone else’s business.
'Workers' have some core employment rights. They have fewer rights than employees who have extensive rights, but they have more rights than the self-employed who tend to have very few legal protections compared to employed people.
Their work arrangements tend to be 'midway' between self-employment and employment. They have some characteristics self-employment (e.g. they use their own tools and can decide their own work schedule) but they depend on the other party for their income (or large part of it).
A carpenter who works exclusively for one firm of building contractors will likely be a ‘worker’ even though he may decide his own hours and own way of working, complete his own tax returns, pay his own tax and National Insurance and provide his own tools. He is a ‘worker’ because the building firm has hired him personally to do the work and it would not be acceptable for him to send a sub-contractor or a friend in his place – even though he is otherwise quite independent of the building firm.
If the building firm also set his hours and work tasks each week with specific holidays and wages, he may well be an employee for employment law purposes.
Alternatively, if he had many clients and was only asked to do a one – off job for the building firm, he would probably be self-employed for employment law purposes.
It is your responsibility to determine the status of your PA for employment law. Like for tax employment status, it is matter of fact, not choice and there is no single test to determine whether a person is an employee, worker or self-employed. All the relevant factors needs to be considered. You can find more information on deciding employment law status on GOV.UK.
You may have heard that HMRC’s tax status indicator tool can help you decide your PA’s employment law status. However a person's tax law status and employment law status can be different. As such, if the HMRC tax status tool gives your PA an ‘employed’ status result for tax law then this would only be an indication that your PA is likely to have employee status under employment law. If the HMRC tax status tool gives your PA a ‘self-employed’ status result for tax law then this would only be an indication that your PA is likely to have self-employed status under employment law.
In addition, you would also need to consider whether your PA has a ‘worker’ status under employment law. ‘Worker’ status does not exist for tax law, therefore HMRC’s tool does not cover it.
You may find it useful to read the employment law case of Chatfeild-Roberts v Phillips & Universal Aunts Limited in which a live-in carer was found to be an employee of the client, even though they viewed her as self-employed. It is useful for two reasons: 1) it shows the application of the employment status tests to a PA situation and 2) it confirms that a court will always consider how a contractual relationship actually works in practice rather than what is written down or agreed between the parties.
If you need help understanding the employment law status of your PA you can contact ACAS for free support and advice.
Skills for Care have also developed a useful guide Understanding the employment status of PAs which explains why it’s important to understand the employment status of PAs, how the wide spectrum of the PA role may influence employment status, the different ways in which you can engage a PA and where to go to find more information and advice.
In the next section of the website, we cover the employment law rights of employees as most PAs will be employees for employment law purposes. However, you can find out more about the rights and obligations for workers and the self-employed on GOV.UK by following the links below: