Am I employed, self-employed, both, or neither?

This page is for you if you want more information on your employment status (that is, whether you are employed or self-employed) and you are someone who is, or will be, providing services in your individual capacity. Employment status can be important if you are running a limited company. If you want more information about employment status in the context of this and the IR35/off-payroll rules see our guidance here.

Why is it important to know if I am employed or self-employed?

Whether you are employed or self-employed will make a difference to the amount of tax and NIC you have to pay, as well as how you pay it.

If you are an employee, your employer is required by law to operate Pay As You Earn (PAYE) tax and Class 1 National Insurance contributions on your wages and pay it to HM Revenue & Customs (HMRC) on your behalf. If you are self-employed you usually pay income tax through the Self Assessment tax return system, as well as Class 2 and Class 4 National Insurance contributions directly to HMRC.

If you think that you are employed, you need to look at pages within the employment section for more information about your tax position. If you think that you are self-employed, you need to look at pages within this self-employment section for more information about your tax position.

It is important to know if you are employed or self-employed for employment law purposes too. Those who are employed or self-employed under tax law will usually be employed or self-employed for employment law, but not always. There is also ‘worker’ status to consider (as explained in the question below).

Finally, it is important to know if you are employed or self-employed because your tax credits or universal credit status may also follow your employment status for tax purposes. Please see the question below for more information.

⚠️ Important note: The distinction between employment and self-employment is not always clear; some businesses try to exploit people looking for work, by treating them as self-employed when they should be treated as an employee. This is known as ‘false self-employment’.

This means the business avoids operating Pay As You Earn (PAYE) and so does not make any payments of tax and National Insurance in respect of your wages to HM Revenue & Customs (HMRC). In certain circumstances, HMRC could demand the PAYE payments that should have been made by the business from you if they believe you should have been treated as an employee and were not, although they should approach the business first.

So be wary if:

• you are offered work and given a choice of being an employee or self-employed;
• someone you are going to work for tells you that you are self-employed.

Instead, make sure you understand your employment or self-employment status for yourself before you start work. If you think that something is wrong, you might want to challenge the business that is offering you the work or contact HMRC.

Is there a law that says whether I am employed, self-employed, both or neither?

No.

There is no straightforward legal definition of what it means to be employed or self-employed. Over the years the law courts have looked at this question many times, and they have identified some situations in which you are definitely employed and others when you are definitely self-employed. But there are other situations where the position is not clear.

The general rule is that you will be:

• An employee if you work for someone and do not have the risks of running a business.
• Self-employed if you have a trade, profession or vocation, are in business on your own account and are responsible for the success or failure of that business.

If it is still not clear, then you need to consider a lot of different factors and then look at the overall picture that emerges (more on this below).

Whether you are employed or self-employed is not a matter of choice; it depends on the circumstances.

To decide your position, you must first consider the basis on which you work. Are you:

• ‘working’ at all? It is important to distinguish working from something that you do as a one-off, a hobby perhaps or as a favour for a friend.
• carrying out an activity which is classed as training and receiving no payment at all, or perhaps only being paid expenses?
• Volunteering for a charity or other organisation to help others or to gain personal experience?
• doing paid work but are neither employed or self-employed? You should note that occasionally you can be doing paid work, but be neither employed nor self-employed, in which case your income may be taxed as ‘miscellaneous’ or 'casual' income.

We look at each of these types of activity in this section.

When am I likely to be employed?

You are likely to be an employee if:

• You can be told what work to do, as well as how, where and when to do it.
• You have to do the work yourself.
• You can be moved from task to task.
• You are contracted to work a set number of hours and get a regular wage or salary, even if there is no work available.
• You have an employment contract and work for a business which is not your own and in which you are not a partner.
• The person or company you work for gives you time off for things like sickness and holidays, which is usually paid subject to the terms of the employment or according to statutory rules.

You can be employed even if you only work part time or have flexible hours or if you are only on a short contract. But if you have a lot of short contracts which you organise and set up yourself, you are more likely to be self-employed.

See also the table below.

When am I likely to be self-employed?

You are likely to be self-employed if you meet the following tests:

• You agree to do the work, but you can send someone else to do the job for you, for instance, a builder who can send another person with similar skills in their place.
• You probably have several customers at the same time. You can do the work how, where and when you like, for example, a writer who agrees to write a book and can write whenever they want to, as long as they meet the deadline set by the contract.
• You run a business and take responsibility for its success or failure, such as a joiner who has to redo unsatisfactory work and cannot charge the customer for the time spent redoing the work.
• You provide the main items of equipment or specialist tools you need to do your work, such as a pick-up truck, or scaffolding.

None of these tests are conclusive. You have to weigh a number of different factors together to get an overall picture – see the table below.

Note that you will not automatically be self-employed just because you have an existing Unique Taxpayer Reference (UTR) and submit tax returns each year, your position lacks permanency, or you provide your own small tools.

I am still not clear whether I am employed or self-employed

If you are still not clear you should consider the factors set out in the table below. In the table, the person for whom you work is called your ‘engager’ – he might be your employer or your client.

You should consider all the questions and then look at the overall pattern which emerges. Does it suggest employment or self-employment? You may also find it helpful to look at the important case section to see how the courts might apply the tests in the table in real life.

Note that the law here is complex – we have tried to simplify things, but this is not a comprehensive guide. If you are still not clear, you should ask a tax adviser or HMRC for help. We tell you how you can find a professional tax adviser, including through the tax charities, in our getting help section.

What help do HMRC provide?

HMRC have a factsheet that will help you check your employment status.

HMRC also offer an online tool called Check Employment Status for Tax (CEST). It will ask you a set of questions about your situation and at the end it will give you an indication of your employment status for tax, which you can print off and then show your engager (if necessary).

To access the part of the tool that deals with general status queries you need to click on 'If some work is classed as employment or self-employment for tax purposes' in answer to the first question (What do you want to find out?)

Although HMRC have tried to make the tool as user friendly as possible, there is also some quite technical language used in the questions, which can be confusing. For example, one of the questions asks whether the worker is an office holder. The term ‘office holder’ has a particular meaning in tax law and includes treasurers, trustees, company directors, company secretaries or other similar statutory roles. As you are unlikely to be an office holder, you should answer ‘No’ to this question.

There is some guidance to help you use it in HMRC's Employment Status Manual, including a glossary of terms and help understanding what each question is getting at.

Note, that the CEST tool should not be used to try and work out a status for employment law purposes, only tax purposes.

I work in the gig economy, what is my position?

The ‘gig economy’ includes people who earn money by using one of the many available online platforms to, for example, offer rides, run errands and make deliveries.

We know that given the irregular and often ‘on demand’ nature of ‘gig economy’ income, in many cases it does not even occur to many people that their income is taxable, let alone what their obligations are in respect of it.

Our Tax if you work in the gig economy page offers guidance tailored to those working in the ‘gig economy’ about their tax and employment law status, including on registering for Self Assessment. It also covers a wide range of other issues on which workers are likely to have questions including:

• What to do about one-off or very casual jobs
• Deductible expenses
• The trading allowance which may mean that you do not have to register with HMRC for Self Assessment (but you may still choose to do so for other reasons explained on our trading allowance webpage)
• Your tax credits/universal credit position
• National Insurance contributions (NIC)

The publication of the factsheet was prompted by HMRC research suggesting that many people (54 per cent) who have earned income from the sharing economy (which includes those working in the ‘gig economy’) do not realise it is taxable.

I work in the construction industry, what is my position?

There is a common misconception that people who work in the construction industry are always self-employed. This is not the case. People who work in the construction industry should work out their employment status in the same way as everyone else.

⚠️ Note that if you work in the construction industry and you are being dealt with under the Construction Industry Scheme (CIS) then you are being treated as self-employed by your engager. However, it can be difficult to spot this, as under CIS you are given ‘payslips’ (‘payment and deductions’ statements sometimes called a PDS) and are having tax deducted at source.

If you are being treated as self-employed but you do not think this is right, you might want to challenge the business that is offering you the work or contact HMRC.

You can find out more about the construction industry and CIS on our website.

I am a partner in a partnership, what is my position?

A partnership (or firm if you are based in Scotland) is an entity which can be used to run a business. The partners (who can be either individuals or companies) personally share responsibility for their business. Although a partnership can be formally set-up using a Partnership Agreement, it is also possible to be ran informally through an understanding between all the partners.

Apart from in Scotland, a partnership is not a separate legal entity like a limited company (see below). Scottish partnerships are a separate legal entity and can own property in their own right.

There are additional tax responsibilities if you are a partner in a partnership and these are explained in our guide to self-employment which covers:

• Partnership tax returns
• Other tax considerations of being in a partnership
• Leaving a partnership (it is possible to no longer be a partner but the partnership continues to trade)

There is further information on setting-up a partnership and registering a partnership on GOV.UK.

I have set up my own company, what is my position?

There is more information on what your position is if you set up a limited company in the employment section.

I am working through an agency/umbrella company, what is my position?

There is information on what your position is if you are working through an agency or umbrella company in the employment section.

Can I be employed and self-employed at the same time?

Yes.

You can be employed and self-employed at the same time. This would usually be the case if you were doing two jobs. For example, if you work for yourself as a hairdresser during the day but in the evenings you work as a receptionist in a hotel, you will be both self-employed and employed.

If you think that you are both employed and self-employed, you may need to look at other pages within the self-employment section, and also pages within the employment section for guidance on your tax position.

In a nutshell, you pay tax on your employment income through PAYE and you pay tax on your self-employment profits via the Self Assessment system.

You must note that if you have to complete a Self Assessment tax return because of your self-employment income, you must also include your employment income (and taxes paid) and any other income that you have on your Self Assessment tax return, not just the self-employment income as it is a ‘return’ of all of your taxable income for the year. See our page How do I pay tax on self-employed income? for more information.

Can I be neither employed nor self-employed?

Yes, you can be neither employed nor self-employed but still active.

Examples might be if you are a volunteer, if you are training, or if you undertake an activity on a one-off basis.

Volunteering

You may be gaining work experience by volunteering. A typical arrangement in such cases is that you give your time for free, but the organisation might reimburse out-of-pocket expenses such as travel costs, or perhaps provide accommodation or meals while you are on site.

If you give your time for free, you should not need to worry about tax and NIC.

However, even if you are not paid for the actual work you do, you may be paid expenses to compensate you for some of the costs associated with volunteering. These can include things like:

• travel expenses (including home to work base)
• postage and telephone
• protective clothing.

Broadly, if you are reimbursed any actual out-of-pocket expenses you have incurred then there will be no tax or National Insurance contributions (NIC) to deal with for either you or the charity paying you. However, if you are reimbursed expenses above the amount actually incurred or are given any other payment, then there may be tax and NIC consequences to think about.

What those consequences are will depend on whether you are classed as an employee of the organisation you are volunteering for or not. If you are, then the payments will be subject to tax and/or NIC as ‘employment income’ and the organisation you volunteer for may have had to operate PAYE/give you payslips etc.

If you volunteer on a regular basis, carry out specified duties and are subject to some level of supervision and control, a number of the hallmarks of employment will be present. However, there could be other factors pointing away from employment - for example, if you only help them out occasionally, you are free to turn down helping them out and you can stop or leave when you wish. Please bear in mind that an employment relationship need not be set out in a written contract; rather, it can be oral, or inferred from the circumstances.

If you are not an employee of the organisation that you volunteer for, then the income may nevertheless be taxable on you, but as casual income not employment income (more on this below).

You can read more about tax and NIC if you are a volunteer on our dedicated page.

If you volunteer while claiming state benefits, you also need to check that there is no effect on your claim. You can find out more about this on GOV.UK. 

Training

The key question to ask is: are you carrying out tasks for someone or are you merely seeing how a job is done – except perhaps for some minor actions you undertake along the way?

This will help you decide whether you are under:

• a ‘contract of training’: basically meaning there should be no tax or NIC due on sponsorship or payment for expenses;
• a ‘contract of service’: that is, you are an employee and should be paying tax and NIC;
• a 'contract of training' and a 'contract of service': meaning you are an apprentice who works and trains at the same time. This situation can occur in a broad range of jobs, from apprentice electricians to trainee solicitors and accountants. You will probably still pay tax and NIC unless you fall under the employer sponsored courses exception.

There is more information in our volunteering and training section.

There is no set definition of what is meant by a contract of training although in a case brought before the courts it was decided that trainees are as follows:

• trainees give minor assistance in the work;
• trainees are not learning a trade, so they are not an ‘apprentice’;
• trainees are not doing work for an employer under a ‘contract of service’;
• trainees are trained both generally and to see how the job is done.

In one court case, the Home Office sponsored a woman for a social work university course with a view to her training and qualifying as a probation officer. The woman performed no duties as an employee and the object of the contract was to further her education and training. This meant she was under a contract of training – the sponsorship paid by the Home Office was not taxable.

The Contracts of Training and Apprenticeship flowchart on GOV.UK might help you decide if your contract is one for training or service.

If you are enrolled in a government training scheme, it should normally be clear whether you have employee or trainee status:

• If you are an employee, you will generally have a direct contract with the person to whom you provide your services;
• Trainees will generally have a contract with the scheme organiser, which may involve work experience or training with a work provider. It will usually be clear from your contract and the surrounding circumstances that the primary purpose is to train you, although you might incidentally do some productive work for your work provider.

⚠️ Note that for minimum wage purposes, there’s no references to ‘trainees’ – you are either a worker and due the relevant minimum wage rate, or not. Further guidance can be found on GOV.UK.

One-off activities

Contrary to popular belief, payments which are not employment income will not automatically be classed as ‘self-employment’ income. They will only be self-employment income if your activity is regular, organised, is done with a view to generating a profit etc. (and so is generating trading income under the ‘badges of trade’).

You might be neither employed nor self-employed if you just receive casual amounts for doing something every now and then. For example, if on a one-off basis you made a wedding dress for a friend and she paid you for doing it, any profit on making the dress would be casual earnings. Such income could be taxable – just not as employed or self-employed income.

If the total casual income is no more than £1,000, this may be exempt from tax following the introduction of the trading allowance in April 2017, and so you may not need to complete a tax return. There is guidance as to when a tax return may be needed in our section on the trading allowance.

If it is not wholly exempt under the trading allowance, and there is tax to pay, you will probably need to show the taxable amount as 'any other income' on your tax return. You may be able to benefit from partial relief under the trading allowance rules when working out the taxable amount. For more information on this see our trading allowance section.

Alternatively, if you have a separate employment, HMRC may be able to collect any tax you owe on casual income by adjusting your PAYE tax code rather than through a tax return.

If there is no tax to pay on the casual income, because it falls under the personal allowance for example, then there is an argument that you should not have to complete a tax return (although you may still need to advise HMRC about the source of income).

We look at the issue of casual income in our gig economy guidance, because income from the gig economy is sometimes casual income and not income from self-employment.

There is further guidance on casual income in HMRC’s Manual.

If I am self-employed for tax purposes, am I self-employed for all purposes?

You should be aware that the information in this section relates to employment status for tax purposes only. It is possible you may have one status for tax purposes but have a different status for other purposes, such as employment law purposes or tax credits/universal credit.

Employment law

Some individuals such as cycle couriers and taxi drivers working in the gig economy are usually self-employed for tax purposes but have recently been found to be ‘workers’ for employment law purposes by the Courts. For more information about ‘worker’ status, including who it covers and what to do if you think you have ‘worker’ status, please see our news article.

Some general information on deciding employment law status and what rights the different statuses give you, can be found on GOV.UK. ACAS can also be contacted for free support and advice on employment law issues.

Both tax and employment law in this sphere is developing as the way we work is changing and there are currently a number of government reviews being undertaken into the whole area. Therefore, we expect the law in this field to continue to evolve over the coming months and years as different situations are considered as they arise by either government, the Courts or both. This section will continue to be updated for any major changes as necessary.

Tax credits/universal credit

While the legal definitions of self-employment in tax credits and universal credit (UC) are based on the concept of a ‘trade, profession or vocation’ from tax law, there are also additional requirements in both benefits – for the person to be recognised as either ‘gainfully’ self-employed in UC or in ‘qualifying remunerative work’ for working tax credits.

The rules about self-employment for UC are separate to the rules for tax which means, although unusual, it is possible to be thought of as self-employed for tax purposes, but not gainfully self-employed for UC purposes (because for example, the activity is not your main employment or is not organised, developed and regular). And the same is true about earnings from self-employment, where they are not thought of as self-employed income for tax, DWP may determine that they are to be treated as self-employed earnings for UC purposes.

A similar issue arises with working tax credit. A person is defined as self-employed for tax credits if they are engaged in carrying on a trade, profession or vocation on a commercial basis and with a view to the realisation of profits, either on one’s own account or as a member of a business partnership and the trade, profession or vocation is organised and regular. It is therefore possible for HMRC to find that the person is not self-employed for tax credit purposes but that they are self-employed for tax purposes so that they must file a Self Assessment tax return.

Where can I find more information?

For more information about who is an employee and who is self-employed for tax and NIC purposes:

• read the general guidance in the section called 'Employment Status' on GOV.UK;
• read the more detailed and extensive material about employment status in HMRC's Employment Status Manual on GOV.UK.

Table: summary of key points on employment and self-employment

This table is a generalised summary of 'indicators' used to judge whether you are employed or self-employed. It is unlikely that you will meet all the indicators for either employment or self-employment.

	Employed	Self-employed
Method of payment	Paid a regular wage by the day, week or month	Invoice the client for work done
Who has control over how work is done?	The way you do your work is supervised	You are trusted to do the work yourself – as long as the final product is up to standard
Where do you do the work?	At the place required by your engager	At a place you decide, although some jobs might have to be carried out 'on site'
When do you do the work?	You are required to turn up at a certain time and work the agreed hours	You have freedom to decide when you do the work, in consultation with your engager
Benefits	You are given rewards other than in cash for your work, such as vouchers, free or cheap meals, a company car or shares	You tend only to be paid in monetary form – cash, cheque or bank transfer – rather than 'in kind' although some businesses might engage in 'barter' transactions
The work you do	Your engager can move you from job to job as needed – for instance, you may have to cover for someone who is sick	You only do the particular job which you agreed to do, unless you subsequently agree a change in terms of providing your services
The number of jobs	You have one job at a time, or a small number of regular jobs, such as one in the morning and one in the evening	You work for a lot of people and you juggle their requests like a builder or a taxi driver
Your role	You have a recognised role at the place where you work – for instance, people may report to you, or you may be listed in the internal phone book	You are an independent provider of services and not a permanent part of the engager's business
Your business?	You do not run a business from home or other location, although you may work from home if this is approved or demanded by your employer. When you need another position, you apply for jobs for example by contacting the Jobcentre or an employment agency, or answering advertisements online or in the newspaper	You have a business which you may run from home – for instance, you advertise your services, you take appointments, you have your own business cards, you are VAT registered
Who does the work?	You do the work yourself	You may send someone else to do the work for you, or arrange for a job to be done and supervise others who you engage to help you. For example, if you are a gardening business, you might take on a job landscaping a 2 acre garden. You would be unlikely to do it all yourself, but you would quote a price for the job and in turn pay other people to help you.

An important legal case on status

An important legal case (Autoclenz Ltd v Belcher [2011]) confirmed certain workers who had been classified as self-employed were in fact employees with a contract of employment.

The company involved was a large one offering car valeting and related services. The individuals concerned in the case all had written contracts, the terms of which were quite explicit in saying that they were being engaged as self-employed contractors rather than as employees. The worker was termed a ‘Sub-contractor’. Under the terms of that agreement, the worker confirmed that he was ‘a self-employed independent contractor’.

So given the clear written terms of the contract, how did it all go so wrong for the company?

It went wrong, because the employment tribunal was entitled to ignore the terms of the written documentation and to look, instead, at the reality behind the workers’ contracts. This was because, in the view of the courts, the workers had only one choice: to sign up on the terms dictated by the company or seek work elsewhere.

Once this principle – looking at the reality behind the contracts – was applied, all sorts of findings of fact by the employment tribunal justified its conclusion that these individuals were working under a contract of employment.

The following factors had been influential in that conclusion:

• the individuals in question could not be described as being in business on their own account;
• they had no control over the way they did their own work, being subject to the direction and control of other employees, and being obliged to clean the cars in accordance with a detailed specification;
• they could control the hours they worked only in the sense that they could leave when their share was done;
• they had no real economic interest in the way the work was organised, though they could earn more by doing more work;
• they had no say in the contractual terms, which were devised by the company;
• their invoices were prepared by the company, which also decided the amount of deductions to be made for insurance and materials, without any evidence of the correlation between those deductions and the actual costs;
• the company determined the rates of pay, increasing or reducing those rates unilaterally;
• the individual workers were fully integrated into the company’s business and, with only a few exceptions, did no other similar work;
• despite a substitution clause in the written agreement, the individuals were in fact required to do the work themselves; and despite another clause that implied that there was no obligation on the workers to turn up, or on the company to provide work, this was wholly inconsistent with what happened in practice.

It was also noted that the company provided, at the time under consideration, all the equipment and materials, including jet washers, vacuum cleaners, sponges and chemicals.

In summary, the Supreme Court agreed with the earlier Court of Appeal ruling, which in turn concluded that the employment tribunal was entitled to find that the individuals were working under contracts of employment.

The Autoclenz approach (that is that parties cannot necessarily rely on the paperwork or contract in place, if the reality of the situation is different) is appropriate when analysing contractual terms in the context of applying employment law legislation aimed at protecting vulnerable workers. It was recently used in the Uber BV v Aslam 2021 case to help decide that the drivers were ‘workers’ for employment law purposes.

As has been shown in the recent tax law case of HMRC v Atholl House 2022, it does not automatically follow that a tax law judge will take the same approach, where for instance, they are trying to analyse contractual terms around employment status in contexts such as IR35/off payroll. The contract wording will still be the first port of call.

However in cases involving vulnerable taxpayers with little bargaining power and false self-employment (where for instance, there is no contract wording as such, and/or terms are foisted onto workers by engagers with a ‘take-it-or-leave-it’ approach in an attempt to avoid operating PAYE), it is foreseeable that the ‘Autoclenz approach’ could still carry weight, although it is unclear how a court would apply all of its principles.