EEA workers, the self-employed and retaining status-

1. EEA workers,the self-employed and retaining status- Martin Williams 03/09/2010

2. 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.

3. 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.

4. 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

5. 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

6. Retaining worker status

7. 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…

8. 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.

9. Other bits retaining worker status • VOCATIONAL EDUCATION • GAPS • SWITCHING CATEGORIES • IS THE LIST COMPLETE?

10. Self employed and retaining status

11. Self employed and retaining status (2) • CHECK – ARE THEY STILL SELF EMPLOYED? • WATCH OUT FOR TILIANU IN THE COURT OF APPEAL….

12. 2004 (Cyprus & Malta) plus A8: Czech Republic Estonia Hungary Latvia Lithuania Poland Slovenia Slovak Republic 2007 Bulgaria Romania ACCESSION STATES

13. A8 nationals A2 Nationals Treat exactly same as French, Dutch, Spanish etc. Required to be authorised in order to work? Required to register? NO NO 12 months continuous legal work (STOP BEING REQUIRED TO REGISTER/SUBJECT TO AUTHOIRISATION) YES YES 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)

14. 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.

15. 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

16. 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.