ESM0502 | Guide to determining status: fact finding techniques

Almost all cases where status is in doubt will need some investigation. The extent of that investigation will depend on the particular facts in each case. In some cases it may be possible to determine status after establishing the basic features of the relationship whereas in others you may have to interview both parties to obtain details of all aspects.

A list of facts you are likely to have to establish can be found at ESM0515.

In order to establish whether a worker, who is not an office holder, is an employee or self-employed, it is firstly necessary to establish the terms and conditions of the engagement. This will normally be established from the contract between the worker and the engager, which may be written, oral, implied or a combination of all three.

Having established the terms and conditions it is necessary to consider any surrounding facts that may be relevant.

These facts then need to be considered in light of the different factors that the courts have identified as being relevant in determining whether a particular contract is a contract of service (employment) or a contract for services (self-employment).

Your opinion on status should not be influenced by consideration of the worker’s rights, obligations and entitlement to benefits, which may arise as a consequence.