Posted: December 15th, 2015

Advise whether Akhtar’s employment status is that of an employee or an independent contractor.

Question

One of the members of the project team is Akhtar Miah, a programmer. He is an external contractor working on the project.

In carrying out his role, Akhtar wears the branded uniform of Wifi Kettles, takes lunch with individuals directly employed by Wifi Kettles in the staff canteen. Akhtar provides and uses his own IT equipment.

He is paid £24,000 per year gross, and is responsible for his own tax and National Insurance contributions. He is entitled to 28 days’ annual leave per year and gets statutory sick pay if he is off work due to illness. There is a clause in his contract with Wifi Kettles that states that he may send along a substitute to perform services in his stead, but only if he is unable to work through illness.

Akhtar is under an absolute obligation to be at Wifi Kettles’ premises – their headquarters in Cardiff – from 10am to 5pm each day in the working week. Wifi Kettles exercises actual day-to-day control over the provision of his services, instructing when and where he is to work.

He is subject to Wifi Kettles’ disciplinary and grievance procedure, and there is a written warning on his file for being late arriving at work on a number of occasions over a period of four weeks when he was suffering from insomnia.

After you meet with the Head of HR, Amaia Foster, to discuss some HR issues in relation to your project, she mentions in passing that there is a current Employment Tribunal claim against Wifi Kettles in which an external contractor has claimed unfair dismissal against the company, arguing that they are in fact an employee and not an external contractor. This gets you wondering about Akhtar’s employment status.

Advise whether Akhtar’s employment status is that of an employee or an independent contractor.