All posts by Terry Harris

Have you reviewed your workers’ employment status?

Businesses should regularly review whether individuals working for them are correctly classified as employees, workers or self-employed. Getting employment status wrong can result in unexpected tax liabilities, penalties and loss of employment rights.

Employment status affects both the rights of the individual and the responsibilities of the business. However, a person’s employment status for employment law purposes may differ from their status for tax purposes, so employers need to consider both.

An employee usually works under an employment contract and has greater employment rights, including protection against unfair dismissal, subject to qualifying conditions, and entitlement to statutory payments.

A self-employed person generally runs their own business, takes responsibility for its success or failure and is responsible for their own tax and National Insurance obligations. However, the label used in a contract is not enough on its own. HMRC and employment tribunals will consider the actual working relationship.

Factors that may indicate employment include regular working hours, supervision and control by the business, the provision of equipment and the inability to send someone else to carry out the work.

Businesses should use HMRC’s employment status checking tool, Check employment status for tax (CEST), where appropriate. The CEST tool gives HMRC’s view of a worker’s employment status, based on the information provided.

All online harassment is unacceptable, in any context

A recent ruling has determined that targeting individuals online, even on a private group chat, can lead to a loss of employment. A Mr. Y was employed by the Royal Mail as a delivery driver with an impeccable, longstanding record of service. This was not to last as, in 2022, a labour dispute orchestrated by his union led to the creation of a messaging group for all union members at his depot.

While Mr. Y held no formal office or role within his union, he remained an active member and his strength of feeling led him to post two highly controversial messages on the group chat. The first was a direct expletive aimed at their employer, albeit one accompanied by an ‘only joking’ emoji. The second, however, constituted a significant escalation, as Mr. Y called out two colleagues who had opted not to participate in the strike, demanding their allegiance and jesting that the failure to join their ranks would result in their ‘cars being blown up’.

Mr. Y subsequently apologised and maintained that he had been joking. However, a trainee manager who had been sent the post considered it genuinely intimidating. This led to a formal internal investigation by the Royal Mail, which found that the posts directly breached their code of corporate conduct and social media policies regarding threatening behaviour toward colleagues, leading to Mr. Y's immediate dismissal for gross misconduct. In response, Mr. Y launched a legal claim, arguing that his dismissal was automatically unfair, as his messages fell within the auspices of protected trade union activities.

The Employment Tribunal rejected his claim, reaffirming the company’s finding of misconduct. Mr. Y then took his case to an Employment Appeal Tribunal. The Appeals Judge, however, upheld the Lower Tribunal’s finding that legal protections for union activities do not extend to abusive or threatening language merely because it takes place within a union-branded forum. The Judge concurred that such profanity did not advance any union aims and that any message intimating violence transcended peaceful and lawful industrial encouragement. Moreover, the Tribunal did not need to decide whether the message was intended as a genuine threat or as a joke, as both would engender an atmosphere of menace that breached any statutory protection.

This ruling sends an unambiguous warning that messaging platforms, including ‘private’ group chats, are not legally insulated spaces. This case draws a clear demarcation between any vigorous advocacy for lawful union action and targeting colleagues with hostile rhetoric. Any attempts to ‘pressure’ coworkers with threats of violence, no matter how they are intimated, carry severe professional risk. For employers, this may signal that their purview extends to any private group chats among their employees, should their attention be drawn to any problematic messages, and not merely internal Emails or messaging forums such as Slack and Teams.