This question crops up many many times and the answer is often not at all clear. In a recent case (James v Redcats (Brands) Ltd), a person set up a business as a courier for a company.

She was required to make alternative arrangements for deliveries at times of holidays / illness.

She could work for other companies but chose not to. The benefit of the case was that because such cases often hinge on a recipe of ingredients in the contractual situation the Employment Tribunal can focus on what the ‘dominant purpose’ of the contract was, i.e. was it an obligation to perform the work personally (employee) or was it to achieve a particular outcome / objective (and personal service was not a crucial issue?)

The case was remitted to a fresh tribunal to consider the issues once again particularly since the first tribunal had not properly examined the legal situation. The National Minimum Wage Act applies the presumption that an individual qualifies for the NMW unless proved to the contrary.

The approach in this case was also considered in another (MOD HQ Defence Dental Service v Kettle). In this latter case an orthodontist providing dental care to MOD staff was deemed to be offering a personal service.

Additionally the orthodontist had a high degree of control by the MOD save for paying own tax, NI, pension, sick pay and negligence insurance. If the orthodontist was on holiday the MOD provided an alternative. As a result of the claim the orthodontist was deemed an employee and could claim various rights under employment law including unfair dismissal.

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