Determining Employment Status

An individual's employment status is defined under law rather than based on either an employer's or individual's preferences. This is determined by a number of legal tests, which will include considering:

• personal service
• control
• mutuality of obligation.

Please refer to the Glossary for a brief definition of the above.

If your department needs someone to undertake work under all of the following conditions, then a full employment relationship will exist, and you will need to seek authorisation to recruit either an open-ended or fixed-term employee using established University of Sheffield authorisation / recruitment procedures:

• Need someone to provide a service/execute the work personally (i.e. they can't substitute or subcontract the work to someone else and pay them directly)

• Need to control: what, how, when or where the work is done; need to check the quality of the work undertaken, etc

• Need someone who commits to undertake and complete work, and the University is obliged to offer/provide the work

• Additionally, if you need someone to undertake work continually, either for a period with a definite end date, or if you expect that the need will continue for longer than anticipated or even indefinitely, then a more casual arrangement is unlikely to be suitable.

Determining an appropriate employment type is complex, as there is no one piece of employment legislation that helps us do this. Thus various employment tests have evolved over time, which need to be applied on a case-by-case basis. It is important to consider the reality of the relationship, rather than what will be written in the agreement.

Please note also that timescale is not a factor – i.e. it doesn't matter if you need to engage someone for a very short period, it could still be deemed to be an employee relationship on a fixed term basis if all of the above factors apply.

The determination of employment status needs to reflect the current role and factor in any changes that may be agreed between the department and individual.

In its broadest sense, individuals that undertake work activity for the University should belong to one of the following ‘employment status’ groups summarised in the following table:

Type Relationship – Employee / Worker Brief Description Open Ended Employee Employee Can be used to employ staff full time or any (reasonable) number of fractional hours. Contract document raised via Department of HR, pursuant with existing procedures. Fixed Term Employee Employee May only be justified in law when used to achieve a legitimate business objective, where it is necessary to achieve that objective and where it is an appropriate way to achieve that objective. Contract document raised via Department of HR. Refer to the University’s Fixed Term Contract Procedure. Worker with ‘Registration Agreement for the University Bank’ Worker, although individuals accrue statutory employment rights during engagement periods only The ‘Registration Agreement for the University Bank’, may be used by departments requiring a 'bank' or 'pool' of support to be called upon, often at short notice. Individuals can refuse work and the UoS is under no obligation to provide it. This category is not anticipated to be appropriate to engage individuals in longer-term work. Arrangements for this category will be managed by departments, including the Registration Agreement for the University Bank, raised by department. Self Employed Self Employed Generally used for independent consultancy. Paid a fee via General Ledger (based on the submission of invoices). Agreement for the Provision of Services, raised by department. Agency Worker Agency Worker It is assumed that agency workers and contractors’ staff are not and should not become employees or workers of the University. However, there is a need for caution as agency workers may be viewed as employees of the hirer, especially if managers have started to treat them like their own staff. Conversely, in some cases, agency workers have been held to be the employees of the agency through which they work. University departments should deal with employment status in the agreement they set up with the agency, and be aware of the terms agreed between the agency and the worker.

Last updated: 16 August 2011