Test Of Employer

[Iggle Piggle]

Hey legal types, what is the current test of employer? Is it who pays the worker or who controls the worker or other test/s?
Thanks.

[Buenchico]

I'm not entirely sure that I fully understand your question.

However, for day-to-day purposes, an employer is the person (or company) who pays the employee.

For example, if I take on work through the the GetABettaJob Agency and they place me in an office at WorseThanScrooge Ltd, my employment contract will be with GetABettaJob Agency and it will be that agency that pays me. Ergo, my employer will be GetABettaJob Agency and not WorseThanScrooge Ltd (even though the latter will control what I do in their office).

[archibaldy]

The employer is whoever the contract of employment is with.

[kvalidir]

Certainly in my industry, an agent get you the job for a production company and the /director controls day to day what happens on their instructions, so it's not the Agent who got the work or the Director who tells me what to do, it's the company who hired me. I imagine it's exactly the same for any business.

[Buenchico]

Kval:
Aren't you self-employed though? If so, you don't have an 'employer' (in the sense in which HMRC uses that term) anyway.

[Buenchico]

^^^ To illustrate my last post, most (all?) of the DJs on Radio 2 are self-employed, even though they have contracts with the BBC.

So, while they're 'employed by' the BBC, the BBC isn't their 'employer' as far as HMRC is concerned.

[Iggle Piggle]

So for example I work at a large business via an agency for 5 years but they only process my pay, they don't get involved in grievance procedures or holiday booking etc. and I was interviewed, inducted and trained by the big firm, work on their systems and in their building. Who is my employer?

[Buenchico]

Any employer has to provide an employee with a 'written statement of employment particulars' within 2 months of them starting work:
https://www.gov.uk/employment-contracts-and-conditions/written-statement-of-employment-particulars

I suspect that the only such statement you'll have been given will have come from the agency, and not from the 'big firm'. Further, I suspect that your pay rate will also be determined by the agency. Putting those things together with the fact that it's actually the agency who pays you, it appears to me that it must be the agency that's your employer.

[Peter Pedant]

er I am pretty sure the leading case is still
Read mix concrete

https://en.wikipedia.org/wiki/Ready_Mixed_Concrete_(South_East)_Ltd_v_Minister_of_Pensions_and_National_Insurance

which is quite old but still good law
and the article cites more recent cases
O'kelly
and Nethermere

read them and see ....

o'kelly is here
https://en.wikipedia.org/wiki/O%27Kelly_v_Trusthouse_Forte_plc

[Iggle Piggle]

Superb, thanks P.P.

[fiction-factory]

Who provides your pay slip and pays the employer's NI?
On a related point, my understanding is that you should be getting teh same terms and conditions as the employed staff at the place you work, so you mayw ant to check this
https://www.gov.uk/agency-workers-your-rights/your-rights-as-a-temporary-agency-worker

[Peter Pedant]

this is how the tax man decides

https://www.gov.uk/hmrc-internal-manuals/employment-status-manual/esm7030

bear in miind that the tax manual is NOT a law manual
but that is their view they will take in court
and they kinda have expensive lawyers who rarely get their law wrong
( well yeah sort of - if that were the case there would be no tax law kinda because everhyone would know what it is)