Employment Rights Act 1996, section 230

Employees, workers etc

Part XIV Interpretation

(1) In this Act “employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.

(2) In this Act “contract of employment” means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing.

(3) In this Act “worker” (except in the phrases “shop worker” and “betting worker”) means an individual who has entered into or works under (or, where the employment has ceased, worked under)—

(a)a contract of employment, or

(b)any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual;

and any reference to a worker’s contract shall be construed accordingly.

(4) In this Act “employer”, in relation to an employee or a worker, means the person by whom the employee or worker is (or, where the employment has ceased, was) employed.

(5) In this Act “employment”—

(a)in relation to an employee, means (except for the purposes of section 171) employment under a contract of employment, and

(b)in relation to a worker, means employment under his contract;

and “employed” shall be construed accordingly.

[F1117 (6) This section has effect subject to sections 43K [F1118 , 47B(3) and 49B(10) F1118] ; and for the purposes of Part XIII so far as relating to Part IVA or section 47B, “worker”, “worker’s contract” and, in relation to a worker, “employer”, “employment” and “employed” have the extended meaning given by section 43K. F1117]

[F1119 (7)This section has effect subject to section 75K(3) and (5).F1119]

Definitions used in section 230 4

business

“business” includes a trade or profession and includes any activity carried on by a body of persons (whether corporate or unincorporated),

Defined in s.235(1) · see it in the full Act
workers

(4) The Secretary of State may by order make amendments to this section as to what individuals count as “workers” for the purposes of this Part (despite not being within the definition in section 230(3)).

Defined in s.43K(4) · see it in the full Act
worker

(1) For the purposes of this Part “worker” includes an individual who is not a worker as defined by section 230(3) but who—

(a)works or worked for a person in circumstances in which—

(i)he is or was introduced or supplied to do that work by a third person, and

(ii)the terms on which he is or was engaged to do the work are or were in practice substantially determined not by him but by the person for whom he works or worked, by the third person or by both of them,

(b) contracts or contracted with a person, for the purposes of that person’s business, for the execution of work to be done in a place not under the control or management of that person and would fall within section 230(3)(b) if for “personally” in that provision there were substituted “(whether personally or otherwise)”,

( ba )works or worked as a person performing services under a contract entered into by him with NHS England under section 83(2), 84, 92, 100, 107, 115(4), 117 or 134 of, or Schedule 12 to, the National Health Service Act 2006 or with a Local Health Board under section 41(2)(b), 42, 50, 57, 64 or 92 of, or Schedule 7 to, the National Health Service (Wales) Act 2006 ,

( bb )works or worked as a person performing services under a contract entered into by him with a Health Board under section 17J or 17Q of the National Health Service (Scotland) Act 1978,

(c) works or worked as a person providing services in accordance with arrangements made—

(i)by NHS England under section 126 of the National Health Service Act 2006, or Local Health Board under section 71 or 80 of the National Health Service (Wales) Act 2006 , or

( ii ) by a Health Board under section 2C, 17AA, 17C, . . . 25, 26 or 27 of the National Health Service (Scotland) Act 1978, or

(cb) is or was provided with work experience provided pursuant to a course of education or training approved by, or under arrangements with, the Nursing and Midwifery Council in accordance with article 15(6)(a) of the Nursing and Midwifery Order 2001 (S.I. 2002/253), or

(d)is or was provided with work experience provided pursuant to a training course or programme or with training for employment (or with both) otherwise than—

(i)under a contract of employment, or

(ii)by an educational establishment on a course run by that establishment;

and any reference to a worker’s contract, to employment or to a worker being “employed” shall be construed accordingly.

Defined in s.43K(1) · see it in the full Act
employed

and any reference to a worker’s contract, to employment or to a worker being “employed” shall be construed accordingly.

Defined in s.43K(1) · see it in the full Act

Cases considering section 230 181

Uber BV and others v Aslam and others

[2021] UKSC 5 · 19 February 2021Interprets

The Court noted that an employee is an individual who has entered into or works under a contract of employment. (see para [36]) The Court identified a contract of employment as a contract of service or apprenticeship and distinguished employees from the wider statutory class of workers. (see paras [36]-[38]) The Court interpreted the limb (b) worker definition purposively. Status depends on whether the individual undertakes personal work for another who is not a client or customer, determined from the practical relationship rather than contractual labels. (see paras [35]; [41]-[42]; [68]-[89]) The Court noted that “employer” is defined broadly by reference to employment under a worker’s contract. (see para [36]) The Court noted that “employed” is defined broadly by reference to employment under a worker’s contract. (see para [36])

Gilham v Ministry of Justice

[2019] UKSC 44 · 16 October 2019Interprets

The statutory worker definition ordinarily requires a contractual relationship. A judge's status may differ according to whether the relevant right requires EU-conforming interpretation. For Convention purposes, the definition was read to extend whistle-blowing protection to judicial office-holders. (see paras [2]-[3]; [9]; [44]) On ordinary construction, a judicial office-holder who lacks a contractual relationship is outside limb (b). Under the Human Rights Act interpretive duty, limb (b) can include an individual who personally performs services by appointment to office for persons other than clients or customers. (see paras [16]-[21]; [40]-[44])

Pimlico Plumbers Ltd and another v Smith

[2018] UKSC 29 · 13 June 2018Defines

Cited only. The court applied the definition of a limb (b) worker. It required an undertaking of personal performance and required that the other party should not have client or customer status. A limited substitution facility did not defeat personal performance, and the tribunal was entitled to reject client or customer status (see paras [20]-[34]; [43]-[49]).

161 more judgments, and what each says about section 230, are in the case-law panel in the full Act.

Amendments and notes

4 notes from legislation.gov.uk

Amendments

  1. F1117S. 230(6) inserted (2.7.1999) by 1998 c. 23, s. 15(1); S.I. 1999/1547, art. 2
  2. F1118Words in s. 230(6) substituted (26.5.2015) by Small Business, Enterprise and Employment Act 2015 (c. 26), ss. 149(3), 164(1); S.I. 2015/1329, reg. 2(e)
  3. F1119S. 230(7) inserted (30.6.2014) by Children and Families Act 2014 (c. 6), s. 139(6), Sch. 7 para. 41; S.I. 2014/1640, art. 3(2)(j)

Modifications

  1. C265S. 230(3)(b) applied (1.11.1998) by 1998 c. 39, s. 24(5); S.I. 1998/2574, art. 2(1), Sch. 1