Worker Status EAT Judgment – (Ter-Berg v Malde and another [2025])

Gareth Stevens, Partner in our Employment Team, was recently involved in successfully appealing to the Employment Appeal Tribunal (“EAT”) what could be a landmark case on worker status. Gareth explains...

In the case of Ter-Berg -v- Malde and another [2025] EAT 23 the EAT found that the Employment Tribunal had erred in its finding that the Claimant was not a worker, revolving around the personal service test.

In UK employment law, determining whether an individual is classified as an employee, worker, or self-employed is crucial, as each status confers different rights and obligations. The recent case of Ter-Berg v Malde and another [2025] EAT 23 sheds light on the complexities involved in distinguishing between these categories.

Employment Status Categories

• Employee: An individual who works under a contract of employment, providing personal service to the employer. Employees enjoy the most comprehensive employment rights, including protection against unfair dismissal, entitlement to statutory sick pay, and family leave benefits.
• Worker: A broader category that includes individuals who perform work or services personally but are not genuinely in business on their own account. Workers are entitled to certain rights such as the National Minimum Wage, paid annual leave, and protection against discrimination and whistleblowing. However, they do not have all the rights afforded to employees, such as unfair dismissal protection.
• Self-Employed: Individuals who run their own business and take on the risks and rewards associated with it. They have limited employment rights but have autonomy over their work and are responsible for their own tax affairs.

In the Ter-Berg v Malde and another [2025] case before the EAT Dr Ter-Berg claimed he was a worker. The Employment Tribunal found that he was not a worker. This decision was overturned by the EAT. The EAT Judgment helps clarify the overlap between the test for worker status and the test for employment status. Where both issues are relevant, they should be considered together. However, as there is a lower pass mark for worker status, conclusions in relation to employment status cannot necessarily be transferred to the questions of worker status.

Conclusion

Determining employment status is a nuanced process that requires careful consideration of the working relationship's specifics. The Ter-Berg v Malde and another [2025] EAT 23 case highlights the importance of personal service in distinguishing between self-employed individuals and those classified as workers or employees. As employment practices evolve, particularly with the rise of the gig economy, accurately assessing employment status remains essential to ensure individuals receive the rights and protections they are entitled to under the law. The case is also particularly relevant with the upcoming Labour government changes proposed around their intention to create a single status of a worker and have workers and self-employed rather than the current 3 categories.

Read the Judgment here.

As always, if you have any queries in relation to Employment Tribunals, get in touch with the Employment Team at Leathes Prior on 01603 610911 and we would be happy to assist.

Note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any specific circumstance.