A maintenance worker at the nursery has just asked to be paid holiday when he takes his vacation in August. However, the nursery has a contract with him that clearly states he is self-employed. Is he due holiday pay?
Despite what the contract says and depending on the reality of the arrangements with the individual, it is possible that he could be entitled to holiday pay and other rights as a “worker”.
Employers commonly assume that workers treated as self-employed for tax purposes have no employment rights. While that is true for those self-employed who genuinely run their own independent businesses, it is incorrect for a growing number of self-employed workers. Further, the documentation between the parties and tax status is rarely determinative of whether an individual is self-employed, a worker or an employee and the courts and tribunals will instead consider the arrangements in practice.
Control, mutuality of obligation and personal service should all be taken into account in determining the legal status of an individual. If an individual is deemed to be a worker, they will be legally entitled to rights such as the national minimum wage, paid holidays, rest breaks, auto-enrolment pension, maximum working time and protection against discrimination.
The nursery often uses settlement agreements when staff leave. They include confidentiality and non-disclosure clauses, requiring the employee to keep certain facts related to the termination of the employment confidential. Is this allowed?
Assuming they are appropriately drafted, such clauses are legally permissible. However, the use of confidentiality clauses in settlement agreements continues to be a focus for public debate. What is clear from recent events and headlines is that the use of non-disclosure and confidentiality terms will be subject to increased scrutiny.
The Equality and Human Rights Commission has issued a report on sexual harassment in the workplace which makes a number of recommendations aimed at restricting the use of non-disclosure and confidentiality clauses. In addition, the House of Commons Select Committee for Women and Equalities has launched an inquiry into the use of non-disclosure agreements.
I suggest you review your standard settlement agreement to ensure the scope of the circumstances in which disclosure will be permitted remains appropriate.
