Q: I have a groom who works part-time at another yard, as well as mine. I pay her gross by cheque every week. I thought she was self-employed, but, as there is no written contract between us, I am concerned she might be my employee. Should I be worried?
A: The question of whether or not your groom is your employee depends entirely on the nature of her relationship with you. She is not automatically deemed self-employed because she also works at another yard and you pay her by cheque rather than via a payroll, says solicitor Melissa Paz of Withers LLP.
Melissa advises considering the relevance of all the factors listed below to identify your groom’s work status. Your groom may be an employee if there is:
- Control: the greater the degree of control you exercise, or are entitled to exercise, over your groom, the greater the likelihood of her being your employee. “Control” may be over what work is done, when it is done and/or how it is done.
- Mutuality of obligation: for employment to exist, there must be an obligation on the part of your groom to work and an obligation on your part to pay for that work.
- Provision of equipment: if you provide a significant amount of equipment that is fundamental to the role, this points towards the groom being your employee.
- Basis of payment: employees tend to be paid a fixed wage or salary by the week or month and often qualify for additional payments such as overtime or bonuses. Paying your groom weekly points towards her being your employee.
- Integration: if your groom is part and parcel of your yard — for example, managing other members of staff — this indicates employment.
- Benefits: employees are often entitled to sick pay, holiday pay, pensions and expenses.
- Length of engagement: long periods working at one place can be typical of employment.
Your groom may be self-employed if there is:
- Personal service: if your groom can hire somebody else to do her job.
- Financial risk: if your groom risks her own money by, for example, buying equipment needed for the job.
Melissa also states that another important area is your intention — whether or not you intend to employ the groom. And she suggests you discuss this with her. Once you have both agreed on whether she is employed or not, Melissa advises that you draw up a written contract.
“It is common for owners not to have written contracts with their grooms, but this is dangerous,” she warns. “A contract records the intention of both parties. This the most important factor, and may well be decisive in determining employment status.”