1. Employment Law Training
Institute of Agricultural Secretaries and Administrators
The Pavilions, Yorkshire Showground
Tuesday 22 May 2018
Julie Dalzell and Adrienne Patterson

2. Employment Status
Employment status categories
Key rights for employees
Key rights for workers
HMRC and Employment Tribunal tests of employment status
Recent cases on status
Proposals for change: the Taylor Review

3. Employment Status Categories
Employee an individual who has entered into or works under a contract of employment
Self employment those who are in business and providing their services via a limited company, sole trader or partnership arrangement to customers and clients
Worker an individual who has entered into a contract to do or perform personally work or services for another party whose status is not a client or customer of any business carried on by the individual

4. Key rights for Employees
These include:
Not to be unfairly dismissed
To written particulars of employment
To an itemised pay statement
To guarantee payments
To payments on insolvency
To family and dependants leave
To pay during periods of medical suspension
To a redundancy payment

5. Key rights for Workers These rights include:
Entitlement to paid annual leave (Regulation 13 WTR 1998)
Protection from unlawful deductions from wages (section 13, ERA 1996)
Protection from discrimination (section 39, EQA 2010)
National Minimum Wage (Section 1 National Minimum Wage Act 1998)
Right to be accompanied to disciplinary or grievance hearing (Section 10 Employment Relations Act 1999)
Protection from making a protected disclosure (whistleblowing) (Part IVA ERA 1996)
Protection under the Data Protection Act 1998 (Data Protection Act 1998)
Right to pension contribution from employer under the auto enrolment scheme (Pensions Act 2008)

6. Status Tests
There is a similar approach taken by HMRC and the Employment Tribunals to determining status. The difficulty for the engager is that an individual who is regarded as self-employed for tax purposes will not necessarily be regarded as an employee for unfair dismissal or redundancy purposes.
The NICs deeming rules
Tax and the agency rules
The contract
Case law
HMRC guidance

7. Recent Cases Pimlico Plumbers v Smith [2017] EWCA Civ 51
Uber v Aslam, Farrar and ors (UKEAT/0056/17/DA)
Clyde & Co v Bates van Winkelhof [2014] UKSC 32
The Hospital Medical Group v Westwood [2012] EWCA Civ 1005
King v The Sash Windows Workshop Limited [2017] CJEU C‑214/16

8. Proposals for Change
New laws aimed at bringing the certainty for all parties, which is presently lacking, to end
Workers to be renamed “dependent contractors” and classified as employees for tax purposes
Dependent contractors to have entitlement to SSP
Employees and the self employed to pay the same rate of NICs
Those engaging self employed to pay a sum equivalent to employer NICs
Self employed become entitled to same state benefits as employees

9. Tied Accommodation Rent (Agriculture) Act 1976
Protected Agricultural Occupancy
Tenancies commencing prior to 15 January 1989 (or succession)
Qualifying Worker
- employed in agriculture for minimum 91 out of last 104 weeks (including previous employment)
- 1 week = 35 hours or more (including sickness and holiday)
Property in Qualifying Ownership – owned by employer/arrangement
Relevant licence or tenancy – exclusive occupation and separate dwelling

10. Tied Accommodation End of Employment - Statutory Tenancy - Fair rent
Termination of Tenancy
- Death (if no successor)
- Vacation of property if no intention to return
- Rent (Agriculture) Act 1976 – grounds for possession
Application for Rehousing

11. Tied Accommodation Housing Act 1988 Assured Agricultural Occupancy
Occupancies commencing after 15 January 1989
Qualifying Worker
Property in Qualifying Ownership
End of Employment – Statutory periodic Tenancy, market rent
Termination of Tenancy – statutory grounds
Application for rehousing

12. Tied Accommodation Assured Shorthold Tenancies
Can be used where worker would otherwise qualify for an assured agricultural occupancy
Right to possession at the end of the agreed term
Required conditions
- must serve notice in prescribed form prior to tenancy commencing
- must be rent of more than £250 per year
- must give at least 2 months’ notice for repossession

13. Wages
Agricultural workers employed in England before are normally entitled to;
Minimum rates of pay which may be higher than the NMW
Paid holiday
Agricultural sick pay
Pay even if bad weather stops work
Night work pay
On-call allowance
30 minute rest breaks, if they are 18 or over and work more than 5.5 hours a day

14. Wages (cont’d)
From 1 October 2013, the terms and conditions changed for agricultural and horticultural workers in England who begin new jobs; they must receive at least:
National minimum wage or national living wage
Other statutory minimum terms of employment

15. Working Time Regulations
Rest Breaks – remember H&S risk assessments (
Calculating holiday pay
5.6 weeks holiday (28 days for full time employee)
Pro-rated for part-time workers
Can include bank holidays
Overtime
Hourly rate

16. Eligibility to Work
Carrying out right to work checks correctly can provide an employer with a statutory excuse against a civil penalty for employing a person illegally if it transpires that the employee does not have the right to work in the UK during the employment.
Right to work checks
Who, When, What, Why?
Obtain original versions of acceptable documents
Check that the document is genuine
Make Copies of the documents
Civil penalty – maximum penalty of £20,000 for each illegal worker
Further guidance available from Home Office

17. Any questions? Thank you for attending
Adrienne Patterson, Manager Agriculture
Julie Dalzell, Senior Associate A