C1PART 1PENSION SCHEME MEMBERSHIP FOR JOBHOLDERS
CHAPTER 7APPLICATION AND INTERPRETATION
Workers
I370“Employer”, “worker” and related expressions
1
This section applies for the purposes of this Part.
2
“Contract of employment” means a contract of service or apprenticeship whether express or implied, and (if it is express) whether oral or in writing.
3
“Worker” means an individual who has entered into or works under—
a
a contract of employment, or
b
any other contract by which the individual undertakes to do work or perform services personally for another party to the contract.
4
But a contract is not within subsection (3)(b) if the status of the other party is by virtue of the contract that of a client or customer of a profession or business undertaking carried on by the individual concerned.
5
For the purposes of subsection (3)(b), it does not matter whether the contract is express or implied or (if it is express) whether it is oral or in writing.
6
Any reference to a worker's contract is to be read in accordance with subsections (3) to (5).
7
“Employer”, in relation to a worker, means the person by whom the worker is employed (subject to sections 37(5) and 38(6)).
8
“Employment” in relation to a worker, means employment under the worker's contract.
I4C271Agency workers
1
This section applies to an individual (“the agency worker”)—
a
who is supplied by a person (“the agent”) to do work for another person (“the principal”) under a contract or other arrangements made between the agent and the principal,
b
who is not, as respects that work, a worker, because of the absence of a worker's contract between the individual and the agent or the principal, and
c
who is not a party to a contract under which the agency worker undertakes to do the work for another party to the contract whose status is, by virtue of the contract, that of a client or customer of a profession or business undertaking carried on by the individual.
2
Where this section applies, the other provisions of this Part have effect—
a
as if there were a worker's contract for the doing of the work by the agency worker, made between the agency worker and the relevant person under subsection (3), and
b
as if that person were the agency worker's employer.
3
The relevant person is—
a
whichever of the agent and the principal is responsible for paying the agency worker in respect of the work, or
b
if neither the agent nor the principal is responsible for doing so, whichever of them pays the agency worker in respect of the work.
I572Directors
1
A person who holds office as a director of a company is not, by virtue of that office or of any employment by the company, a worker for the purposes of this Part, unless—
a
the person is employed by the company under a contract of employment, and
b
there is at least one other person who is employed by the company under a contract of employment.
2
In this section, “company” includes any body corporate.
I673Crown employment
1
This Part has effect in relation to employment by or under the Crown as it has effect in relation to other employment.
2
For the purposes of the application of the provisions of this Part in accordance with subsection (1)—
a
references to a worker are to be construed as references to a person employed by or under the Crown;
b
references to a worker's contract are to be construed as references to the terms of employment of a person employed by or under the Crown.
3
This section does not impose criminal liability on the Crown.
4
But on the application of the Regulator the High Court may declare unlawful a failure by the Crown to comply with any of the duties mentioned in section 45(1).
I774Armed forces
1
A person serving as a member of the naval, military or air forces of the Crown is not, by virtue of that service, a worker for the purposes of this Part.
2
A member of any of the forces specified in subsection (3) who assists the activities of any of those forces is not, by virtue of anything done in assisting those activities, a worker for the purposes of this Part.
3
The forces are—
a
the Combined Cadet Force;
b
the Sea Cadet Corps;
c
the Army Cadet Force;
d
the Air Training Corps.
I1I875Police
This Part has effect in relation to a person who—
a
(subject to such exceptions as may be prescribed), holds the office of constable as a police officer or an appointment as a police trainee or police reserve trainee under section 39 or 40 of the Police (Northern Ireland) Act 2000 (c. 32) or as a police cadet under section 42 of that Act, and
b
does not hold that office or appointment under a contract of employment,
as if the person were employed by the Chief Constable under a worker's contract.
I976Persons working on vessels
1
Subject to regulations under section 96 of the Pensions Act 2008 (c. 30), a person employed or engaged in any capacity on board a ship is not, by virtue of that employment or engagement, a worker for the purposes of this Part.
2
In this section, “ship” includes—
a
a hovercraft within the meaning of the Hovercraft Act 1968 (c. 59), and
b
every description of vessel used in navigation.
I277Extension of definition of worker
The Department may by regulations make provision for this Part to apply with or without modifications—
a
as if any individual of a prescribed description (who would not otherwise be a worker) were a worker,
b
as if there were in the case of any such individual a worker's contract of a prescribed description under which the individual works, and
c
as if a person of a prescribed description were the employer under that contract.
Pt. 1 applied (with modifications) (1.7.2012) by The Automatic Enrolment (Offshore Employment) Order 2012 (S.I. 2012/1388), arts. 1(1), 2 (with art. 5)