The options regarding employment are varied. In this article, we hope to address some of the questions that the IRS has been asked regarding employment status and the issues arising from self-employment.

The first point we should make is that sections of employment law relate to employees’ and other sections to the broader category of ‘worker’.

An example of an employee is a person who is directly employed – the more the individual is integrated into the organisation and are paid a salary, the more likely they will be an employee.

Workers include people who are contracted to provide a service and could include a consultant, or someone who came to the practice to carry out a particular role – such as running behavioural training classes or a computer specialist who provides a service on a retainer to look after the computer system.

Workers are entitled to the Minimum Wage and are covered by the Working Time Regulations. Employees have additional rights in respect of unfair dismissal, redundancy, maternity pay, paternity pay, flexible working and statutory sick pay, often after a qualifying period.

Employment Rights could include the right to:

   be treated fairly

   claim unfair dismissal

   claim redundancy payments

   a written statement or contract

   flexible working

   protection under Employment Rights Act, Wages Act, Working Time Regulations (to name a few).

Fixed-term contracts (Employed)

If you work on a fixed-term contract, such as a contract for six or 12 months to cover maternity, leave you have employment rights under the Employment Rights Act 1996.

You should have a contract which clearly states the period of time for which the employer expects you to work, with a termination date, or an occurrence of an event, i.e. a person returning from maternity leave.

Under this contract you are likely to be an employee and will receive payment in the form of wages.

Agency workers (Employed)

If you work for a veterinary practice via an agency, there is likely to be an ‘Agreement’ or ‘Contract’ between you and the agency, as well as you or the agency and the veterinary practice.

If you work via an agency you are still entitled to the National Minimum Wage and are covered by the Working Time legislation, but you do not have the right to request flexible working. You are entitled to a contract and to be paid in the form of wages.

Employees (Employed)

You are an employee when: it is clear you work for a practice on a regular basis, whether or not you have a written contract; if you are paid a salary and there is a mutual obligation for provision of work hours, holiday, payment and the type of work undertaken.

Casual workers (Self-employed or employed)

If there is a veterinary practice providing you with casual work, whether you are self-employed or not will depend on whether there is a ‘mutual obligation on the employer to provide work and on you to carry out the work’.

If the answer to this is ‘yes’, then you could be an employee. If the answer is ‘no’, you are more likely to be self employed.

Bank nurses are usually self-employed as they have the right to say “No thank you” to certain jobs, or when they want to have long periods of time off work. Casual workers usually fall into the category of’worker'.


A locum/consultant/contractor is a person who is available on a self-employed basis for a limited period of work and may be employed or self-employed.

An important test in establishing whether a person is truly self-employed has historically been whether he or she has the right to send in a substitute to carry out the contracted work.

An Employment Tribunal ruled that a requirement of personal service was essential in an employment contract and, therefore, a contract which permitted a substitute to be sent could not be a contract of employment and thus had to be a consultancy agreement.

Factors to be taken into account in assessing whether a locum/consultant/ contractor is truly self-employed include the following criteria.

The degree of control. This test derives from the historical relationship between master and servant and is a necessary element of a contract of employment. If the employer has sufficient power over the individual to tell him or her when, where and how to perform the work, this would be a significant indication that the individual would still be treated as an employee.

A self-employed person would be expected to work independently and not be integrated into the organisational structure. Consultants are not part and parcel of the organisation – they do not appear in the office phone book or have an allocated desk/consulting room.

A self-employed person would normally work for a number of customers. He/she usually carries out self-contained tasks and undertakes work that is ancillary to the main activities of the employer and not similar to the work of other employees – dental service or behaviour clinics.

Where appropriate, self-employed people provide their own equipment and tools and possibly have their own premises. A self-employed person often incurs financial risk for profit or loss.

Self-employed people should not be entitled to the benefits and allowances of employed staff, such as holidays, sick pay, access to disciplinary and grievance procedures, pension and maternity benefits.

The purpose and intention of the parties when the contract was entered into is relevant in determining status. The clearer it is the better.

Method of pay/taxation. If a business has paid an individual regular payments of the same amount for some time, this may indicate that he or she is an employee rather than self-employed. This would be particularly true if pay was agreed each year and the individual was awarded pay increases at regular intervals. Self-employed individuals are more likely to be paid per job and so would not receive regular pay, unless the pay for the job was made in installments. They usually submit an invoice.

Insurance. A self-employed person will usually provide their own insurance. The experience of BVNA members is that this can be very expensive.

‘Employers’ of consultants should, therefore, analyse the realities of the relationship with care.


Volunteers are individuals who carry out tasks or services voluntarily and without payment; often, though not necessarily, for charities.

The position with volunteers should be straightforward. The starting point is that they are not in a contractual relationship with the charity or organisation to which they provide their services. This is because there:

• is no intention to create legal relations

• is no financial consideration

 are no enforceable obligations on either side.

Charities and other organisations using volunteers should ensure that the relationship with the volunteers they use remains one of ‘hopes and expectations’ only. Particular care should be taken if a ‘volunteer agreement’ is to be provided to volunteers, to ensure that it does not give rise to any obligations on either side.

Even without a written agreement
, there is a danger of there being held to be a contract if it can be said that the volunteer has had to give a commitment to undertake a task or tasks with some sort of sanction being attached to non-fulfilment of that commitment.

Users of volunteers should pay particular attention to the following point: it is extremely important that volunteers are paid only actual expenses and not any kind of notional figure.


Nicky Ackerley BA(Hons)

Nicky Ackerley HR Support is owned by Nicky Ackerley who has a BA [Hons) Business Studies Degree, is a member of the Chartered Institute of Personnel and Development and who has been a practising HR manager for over 20 years. HR Support Consultancy has provided the BVNA's Industrial Relations Service since it began in 2002.

Veterinary Nursing Journal • VOL 27 • November 2012 •