This was a question that the Jersey Employment Tribunal had to
grapple with recently in a case involving a man who undertook the
book keeping, some administration and banking tasks on a parttime
basis for a restaurant for a period of nine years.
When the restaurant business directors decided to do the tasks
the man had undertaken, he was given a month's notice. He
worked this out but subsequently filed a JET1 claiming redundancy
pay and an award for unfair dismissal. Only if his status was that
of an employee would he be entitled to claim these, under
Jersey's Employment Law.
Initially the man had indisputably been self-employed, but the
position became less clear when some of the circumstances changed
and a verbal agreement reached regarding the payment of his Social
Security contributions by the business.
The man claimed he was an employee for the following reasons
he was given more than one contract of employment;
he was paid holiday pay;
for a period, he was listed as an employee on the
business's Social Security return;
he was entrusted with a set of keys to the restaurant and
office, including to the safe;
he had intimate knowledge of the workings of the business;
he was included in the staff annual bonus scheme;
he was invited to staff parties and staff meetings (although
he issued himself with a payslip without recourse to the
The restaurant contended that the man was self-employed for
various reasons including –
he chose the hours he worked;
he always took holidays when he wanted. He did not seek advance
permission from the Directors to take time off;
he worked for other businesses as well as for the
he did not do all the tasks that were asked of him;
he did not receive sick pay when ill and did not have to
provide a sick certificate;
he had always been regarded as "freelance".
The Tribunal considered the four tests that have evolved over
the years in such cases within the UK to determine whether an
individual is an employee or not.
In this case, the Tribunal found it hard to reconcile some of
the conflicting factors but concluded that the man was not an
employee at the time the relationship ended, because he remained in
control of his working environment. It was the degree of control,
or rather the lack of control, by the employer that was the
So, even if an individual is engaged by your business or
organisation over a long period to provide some form of service and
is very involved in the activities of the business, to avoid any
confusion or dispute arising, they should never be issued with a
contract of employment or terms and conditions of employment
(although they many expect you to sign their terms and conditions
or agreement of services) and no wage slips should be issued to
You would expect to pay the invoices they submit to the
company/business for the provision of their services (which will
include GST if the turnover of their business is above the
threshold for this). By keeping the parameters of the relationship
clear and defined, this should avoid any misunderstanding or any
confusion by the parties or by any authority.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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The Ministry of Human Resources has recently issued a string of new ministerial resolutions and decrees designed to address gaps in the employment regulatory framework and reinforce existing legislation...
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