ESM0558 - Guide to determining status: fact finding/evidence gathering

The notes below are intended to help you to establish the facts at an interview. They must not be issued to the engager, worker or adviser as a questionnaire to be completed. They are not an exhaustive list of issues to be considered in every case. Not all of the issues will apply in every case and some cases will call for further or different lines of questioning. They are intended as a source of ideas only and should therefore be used flexibly and thoughtfully. Some of the issues are not self-contained and will be evidence for more than one status pointer.

The preferred option is to ask general open questions which themselves lead to the answers on some of the issues listed below.

The facts should normally be obtained from both the person providing the work (referred to below as the ‘engager’) and the worker. Do not ask the engager or worker questions about each other that they cannot be expected to know.

ENGAGERS

Engager’s business

• the nature of the business
• whether there are other workers doing similar duties and, if so, whether they are employed or self-employed. If employed, the differences in the terms of engagement.
• a description of the job or work on which the worker is engaged
• whether the worker has previously been an employee of the engager. If so when the change took place and the differences in the terms of engagement.

NATURE OF THE JOB

Engagement of worker

• how the worker was found and, if the job was advertised, you should obtain a copy of the advertisement
• the information given to the worker about the job
• induction and training

Contract

• obtain a copy of any written contract or correspondence concerning the engagement or handbooks or other literature issued, or made available, to the worker
• if there is no written contract, or the written contract did not cover the full terms of the engagement, you will need to find out what other agreements were made between the parties
• full details of the worker’s terms and conditions, in addition to any in writing
• any aspects of the job which were not covered by either a written contract or oral agreements but which the parties understood would apply, possibly because of recognised practices or conventions within the particular trade or knowledge gained from previous working relationships
• establish if there have been any changes to the contractual terms whether written, oral or implied, and if so, what those changes are and the date the changes were implemented and clarify if the changes affect all of the workers engaged. Obtain copies of all written contracts or details of oral or implied contracts, which have been implemented during the period under review.

Control and right of control

• parts of the work, which are or can be checked by a supervisor or manager, and what happens if the work is found to be substandard
• any code of practice, working rules, regulations etc the engager has laid down on any aspect of the work or the behaviour of the worker

What work is to be done

• the tasks that are to be performed under the contract
• any specifications attached to particular tasks
• who decides what is to be done
• •whether the worker be moved from job to job if priorities change

Where the work is to be done

• who decides where the job is to be done
• how much work is carried out on the engager’s premises; if not all, where is it done and who decides this

When the work is to be done

• who decides when the work is to be done
• whether there are set hours
• whether there is any flexibility over hours and their limits
• the arrangements for meal breaks, holidays etc
• notification to be given by the worker about absence due to illness

How the work is to be done

• who tells or, if necessary, could tell the worker how to do the job
• whether any written or oral instructions or other guidance was given either when the worker first began or since whether the worker has a particular skill or experience which would suggest no guidance or direction would be expected
• whether the engager can overrule the worker if the worker has decided what, when, where or how work is to be done

Personal service

• what happens if the worker cannot attend (For example, the worker may be on holiday or may be ill.)
• If it is claimed stand-ins or helpers can be provided
• whether there was a specific provision to that effect when the contract was agreed
• the circumstances in which they can be provided
• who makes the decision to engage them
• the restrictions imposed on their use by the engager
• who recruits them
• who pays them
• who is responsible for their performance

Provision of equipment

• the equipment that is necessary to do the job, who provides it, the cost, if known, and who is responsible for the cost of its upkeep, running costs, fuel, insurance etc

Payment

• the basis of payment (hourly rate, weekly rate etc or by the piece or whether there is an instalment arrangement)
• whether overtime is paid
• what happens if the worker is absent on holiday or is ill
• whether the worker’s expenses are paid or reimbursed
• whether the worker issues invoices for work done or services provided

Exclusive services

• whether the worker is stopped from providing services to anyone else for the duration of the contract and, if so, details of the restriction
• (If there are no restrictions, whether there is any scope for the worker to work for others)

Is the worker part and parcel of the organisation?

• business structure: how the worker fits within it; who is the worker answerable to; whether the worker is responsible for any other workers or their work, how the worker represents themselves to customers
• whether the task is self-contained (that is does the worker offer a specific service or produce a particular item)
• whether the worker has any management responsibilities

Right to terminate contract

• whether there is any right to either fire or suspend the worker and in what circumstances
• entitlement of either party to a period of notice
• If the worker left before completion of the task, the reasons and details of any notice given

Statement of intention

• At the outset, whether there was any agreement as to the nature of the engagement i.e. employment or self-employment, or whether there was any evidence of intention in this regard

Mutuality of obligation

• how work is offered and accepted
• whether the pay records suggest work is in fact done continuously
• how often work has been refused
• If work is refused, whether the engager will offer work in the future

WORKERS

Financial risk

• whether the worker stands to lose if anything goes wrong
• whether the worker has invested any capital in his or her own business such as a loan from the bank, personal money, personal assets and so on
• whether there is any chance the worker might make a loss on the contract

Profiting from sound management

• whether the worker increase the profit on the job in any way other than by working extra hours

Personal factors

• special insurance cover required such as public liability, the cost and who pays
• any expenses; for example, office facilities, telephone, stationery, the cost of these and who pays
• similar services provided concurrently to any other firms and details
• business card, entry in Yellow Pages and so on

Casual and short- term engagements

• full details of similar services to other engagers including:
• a list of all engagements over the previous 12 months showing for each engagement name of engager, dates between which engaged, nature of engagement and approximate earnings
• details of how engagements are obtained and to what extent any business organisation (office, staff, phone, equipment, etc) exists in relation to the individual’s work when viewed overall
• details of the nature of additional expenditure incurred as a result of this pattern of working
• any influence over the rate of pay received (for example is there any evidence of tendering for work)

Longer term part-time engagements

• If the engagement is part-time in nature whether it is related to any existing business of the worker. If so, ascertain the exact nature of the existing business and how the part-time engagement fits in with that business
• approximate number of hours spent working in that business per month (excluding the part-time engagement) and how many hours per month will be spent on the part-time work
• approximate income from the business activities (excluding the part-time work) and the income from the part-time work
• details as to how the other business engagements are conducted and to what extent this differs from the part-time work.

Statement of intention

• At the outset, whether there was any agreement as to the nature of the engagement i.e. employment or self-employment, or whether there was any evidence of intention in this regard

You will also have to ask the worker about some of the issues addressed above under the sub headings engager & nature of the job. You may need to adapt the questions as necessary.