EEA workers,
the self-employed
and retaining statusMartin Williams
03/09/2010
www.cpag.org.uk
Outline
•
who is a worker or self employed person for the
purposes of the Directive
•
situations where persons who are no longer
workers or self employed may retain those
statuses.
•
a brief look at some specific issues for A8
nationals.
Who is a worker?
•
Worker” is a community concept - Raulin
•
A worker is someone in an employment relationship.
Raulin
•
An employment relationship is one where a person:
− provides services
− under the direction of another person
− in return for remuneration
(Lawrie-Blum)
•
Work must entail “effective and genuine activities”, as
opposed to activities that are “marginal and ancillary”
Levin
•
No minimum number of hours. Look at: hours, pay,
duration, conditions etc.
Who is self employed?
•
Self employment exists if a person:
− provides services
− in return for remuneration
− not under the direction of another person
(Jany)
•
Must still be effective and genuine
•
Taking steps to establish oneself as self
employed counts- R(IS)6/00 / CIS/3217/2007
Stopping being a worker /
self employed
•
Worker status ends when employment
relationship ends => Someone is still a worker
when on:
− Sick leave (even unpaid)
− Maternity leave (even unpaid)
•
Self employed status continues:
− During a period of no work due to maternity
− During “dry periods” dependent on the facts
Retaining worker status
WORKER WHO STOPS WORK RETAINS STATUS IF
TEMPORARILY INCAPABLE OF WORK DUE TO ILLNESS
OR ACCIDENT
EMPLOYED MORE THAN ONE YEAR: INVOLUNTARILY
UNEMPLOYED AND REGISTERED WITH JOBCENTRE
FOR SIX MONTHS INVOLUNTARILY UNEMPLOYMENT
PROVIDED REGISTERED WITH JOBCENTRE
<6 MONTHS OF INVOL. UNEMP. PROVIDED REG. +
REASONABLE CHANCE GET JOB
INVOLUNTARILY UNEMPLOYED HAVING ENTERED
VOCATIONAL EDUCATION
VOLUNTARILY UNEMPLOYED HAVING ENTERED VOC.
EDUCATION RELATED TO PREVIOUS JOBS
Temporarily unable to work due to
illness or accident
•
Is client still a worker?.... If so not question of
retention…
•
Test of inability to work is can she fairly be
described as unable to do the work she was
doing or the sort of work that she was seeking?
•
inability to work that must be temporary and not
the illness which produces that inability
•
Pregnancy:
− pregnancy is not an illness or accident
− pregnancy related illness does count however
− Check whether on maternity leave…
Involuntary unemployment and
signing on
•
“Involuntary”:
− Not about circumstances in which left last job- about ongoing relationship
to labour market.
•
“duly recorded unemployment” and “registered as a jobseeker with
the relevant employment office”
− The DWP position is you have to sign on.
− However, a three judge panel of the Upper Tribunal disagreed in SSWP v
FE [2009] UKUT 287 (AAC). Test is whether has stated to JCP that
looking for work
− SSWP appeal against that decision- SSWP v Elmi.
− Can argue until CA decision that 3 judge panel must be followed. Although
better not to advise on this basis to people making claims.
•
“No less than 6 months” where worked for less than a year:
− EC Directive 2004/38 provides for worker or self-employed status to be
retained ‘for no less than 6 months’ if the person has become involuntarily
unemployed having worked less than a year.
− The UK Regulations provide for longer where person can provide
evidence that they are seeking work and have a genuine chance of being
engaged.
− No such limitation if the person has worked for more than a year.
Other bits retaining worker status
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VOCATIONAL EDUCATION
•
GAPS
•
SWITCHING CATEGORIES
•
IS THE LIST COMPLETE?
Self employed and retaining status
SELF EMPLOYED PERSON WHO
STOPS WORK RETAINS STATUS IF
TEMPORARILY INCAPABLE OF
WORK DUE TO ILLNESS OR
ACCIDENT
Self employed and retaining status
(2)
•
CHECK – ARE THEY STILL SELF EMPLOYED?
•
WATCH OUT FOR TILIANU IN THE COURT OF
APPEAL….
ACCESSION STATES
2004
2007
(Cyprus & Malta)
plus A8:
Czech Republic
Bulgaria
Estonia
Romania
Hungary
Latvia
Lithuania
Poland
Slovenia
Slovak Republic
A8 nationals
A2 Nationals
Required to register?
NO
YES
Treat exactly same as
French, Dutch, Spanish
etc.
12 months continuous legal work
(STOP BEING REQUIRED TO
REGISTER/SUBJECT TO
AUTHOIRISATION)
Special rules apply:
1. No right to reside as worker
unless working for an “authorised
employer” / with a worker
authorisation card
2. No right to reside as a jobseeker
3. Cannot retain status as a worker
(except for 1 month period- A8
only)
Required to be authorised in
order to work?
NO
YES
A8/A2: “Legally working?
•
•
•
•
for an A8 national during the period before 1.5.04
either have been done in accordance with any condition
of leave that the person had, or have been done by
someone not requiring leave.
for an A8 national during the period since 1.5.04 have
been for an authorised employer, or they fall into one of
the last four groups not required to register.
for an A2 national during the period before 1.1.07
either have been done in accordance with any condition
of leave that the person had, or have been done by
someone not requiring leave.
for an A2 national during the period since 1.1.07 have
been during a period when the worker held a worker
authorisation document and works in accordance with it,
or they fall into either of the last seven groups not
required to register.
A8 – work for “authorised employer”
A8 person working for an ‘authorised employer’ if
s/he:
•
has a valid registration certificate for that
employer;
•
applied for a registration certificate within the first
month of work, but has not yet had a certificate or
refusal;
•
is within the first month of employment; or
•
has been legally working for that employer since
30.4.04
A8/A2- 12 months continuous work
•
Legally working at beginning and end of that
period and any days when not legally working
total less than 30.
www.cpag.org.uk