Determining Employment Status

Given how the level of employment rights differ depending on status, it is important to try and determine whether or not an individual is an employee, a freelance ‘worker’ or a self-employed freelancer.  However, unfortunately there is no clear and fast rule to determine what employment status an individual has.

Despite this difficulty, there are certain guidelines that can be followed to assist in making an assessment on status.  These guidelines are set out below.  In any event, if in doubt, it is recommended that legal advice be sought or alternatively take a cautious approach and regard all freelancers as ‘workers’.

Employee:

  • must turn up for work at times specified by the organisation;
  • cannot turn down work;
  • must personally do the specific work they are hired to do without arranging for someone else to do it;
  • must work in the way their manager wants;
  • rely on one organisation for work;
  • the engaging organisation preferentially gives them work; and
  • work using equipment provided by the organisation.

Freelance ‘worker’:

  • tend to work for one organisation but not always;
  • carry out the work personally;
  • obligation on organisation to provide work and on individual to accept that work;
  • decide themselves how the work is carried out;
  • decide when and where they carry out the work; and
  • provide their own equipment to do the work.

Self-employed freelancer:

  • the organisation is their ‘client’ and they work for multiple organisations;
  • decide themselves how the work is carried out;
  • no obligation on organisation to provide work and individual can turn down work;
  • can appoint a substitute to carry out the work (i.e. sub-contract the work);
  • high level of autonomy on when and where they carry out the work; and
  • provide their own equipment to do the work.