“Self-employed” or an employee?

Never assume that because you receive an invoice from a person that they are self-employed. There has been increasing scrutiny surrounding worker status and this was examined further recently by the Employment Appeal Tribunal (EAT) in Somerville v Nursing and Midwifery Council.

"Never assume that because you receive an invoice from a person that they are self-employed."

Although Somerville was classed as an independent contractor in the contract and there was no restriction on the work he could undertake for other regulators, the ET found that he was integrated into the NMC. For example, without him, the NMC would not be able to maintain the standards of conduct and performance for nurses and midwives, one of its principal functions. The ET found that Somerville did qualify as a worker.

After NMC appealed the decision, the EAT concluded that the ET was right to find a contract existed under which Somerville had agreed to provide his services personally as a panel member chair for the NMC.

Considering the above ruling, employers should consider the following when engaging “independent or self-employed contractors”.

Do 

Have a written agreement to state the intention of the parties.

Allow the individual to sub-contract the work to others or bring in outside assistance so               the individual is not only providing their own personal services.

Allow the individual to accept or turn down the work if they desire.

Ensure there is no obligation to offer any work or further work

Do not 

Provide tools and supplies. One of the hallmarks of independent contractors is that they              are required to supply their own tools, equipment, and supplies.

Control what, how, where and when work is done. Control is more akin to a worker or                   employment relationship.

Allow the individual to become part and parcel of the organisation by providing the                      opportunity to be promoted or manage other staff.

When was the last time you carried out proper due diligence in terms of working practices and contractual arrangements, in order to identify any potential risks?