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Understanding Mutuality Of Obligation In Business Law

mutuality of obligation

In UK business law, mutuality of obligation is a legal issue that both employers and their employees must fully understand. This matter sets out all legal obligations on the part of the employers in the course of providing work for an employee. It also covers the terms in which employees can perform work for their employers. 

In understanding mutuality of obligation in businesses, employers and workers are able to avoid committing tax violations, disputes and breaches of contracts.

Here, we will talk about the importance of understanding mutuality of obligation in business law and how it applies to employers and their employees.

What is Mutuality of Obligation?

Mutuality of obligation establishes the legal relationships and obligations between employees and their employees. In entering into a contract, the employer has specific obligations in matters relating to providing work for the employee. In the same way, the employee has specific legal obligations relating to performing work for the employer.

We have two types of mutuality of obligation. The fist is common law, which establishes basic obligations. The employer has the legal obligation to provide work for their employee. Likewise, the employee must agree to the work requirement and perform their duties accordingly.

The second is statutory law, which was legislated by Employment Rights Act 1996. Statutory mutuality of obligation lays out provisions and rights for the employee, including their right to wages due and holiday pays.

What are the Employer’s Obligations?

Mutuality of obligation requires employers to ensure the availability of work for their employees and that they are paid for all work performed. Additional employment laws apply, such as equal opportunity laws, anti-discrimination laws and work health and safety laws.

Furthermore, they have the legal responsibility of ensuring that the employee’s pay is taxed accordingly and that corresponding deductions are taken from employee wages. This allows the government to systematically and accurately receive the right amount of taxes from people working in the company.

This also means that the government is made aware of the identity of the employees working in the company for tax monitoring purposes.

What are the Employee’s Obligations?

Under mutuality of obligation, employees are legally responsible to meet and perform all their work duties. This includes showing up for work at the right time and to complete all their tasks as instructed and required, to their best ability.

Additionally, employees must follow relevant workplace laws, including health and safety laws, anti-discrimination laws, equal opportunity laws and more. Should they experience or perceive that employment laws are being violated, they must report or take legal action if necessary. Mutuality of obligation affords them the legal right to do so.

Why are Employment Contracts so Important?

A signed employment contract is essential and important because when set up correctly, it will save companies from a lot of misunderstanding and legal disputes. Employment contracts must state the full job description, remuneration details, work benefits and other related information.

Employees can’t be required nor expected to perform work tasks that are not included in their job description as listed on the employment contract. If an employer hires a salesperson, the employee cannot be expected to perform duties that fall under finance or cleaning personnel.

Additionally, employers cannot compel their workers to work outside of stated work hours. If their employment contracts only specify weekday work duties, then employees are only required to work from Mondays to Fridays and couldn’t be dismissed or punished for not agreeing to work on weekends.

Refusal to work outside contracted work hours cannot be considered a breach of contract. If employers wrongfully insist or unlawfully dismiss them, the employee has the right to take legal action.

Employment contracts must also state the notice period required when a party wants to terminate the employment. A notice period is a set and required amount of time between the notice to end the contract and an employee’s last working day.

Should an employment contract provide two weeks of notice before resignation or termination,an employee must show up to work for two weeks after giving notice. Likewise, an employer must provide two weeks of work to their employee after giving a dismissal or termination notice.

Mutuality of obligation is always present even if there is no written employment contract however, without a written document, it can be hard to clearly define and prove the existing or binding obligations of both parties.

What is IR35?

IR35 refers to tax legislation in the UK that is designed to prevent tax avoidance by workers supplying services to clients through an intermediary but whose actual working relationship is more akin to employment.

Employers and employees must refer to IR5 to determine the amount of taxes due and to assess whether they are classified as an employee or self-employed for taxation purposes.

Contracting an employee with a disregard for IR5 can be problematic. Employers that have fallen foul of this legislation may have to pay back taxes and require insurance for the period of time that employees were wrongly classified under IR35.

Why Would an Employer Try to Hire Someone Outside of IR35?

Some employers intentionally hire people outside of IR35. Some do so to evade tax payments and avoid National Insurance Contributions. Keeping someone off payroll makes it easier to pay them in cash and therefore without records. This route means that no tax deductions would be made and for all intents and purposes, that person wouldn’t be deemed as employed at the company by HMRC.

Some employers keep workers off payroll because they do not want to provide benefits. For instance, self-employed parties are not eligible for Statutory Sick Pays nor Statutory Maternity Pays. Hence, some employers don’t officially hire workers as employees to avoid their responsibility to pay out these amounts to eligible employees.

Employers also hire people off payroll as self-employed parties when they want the convenience of terminating employment at any time. If an employee does not have an employment contract, then they are not legally protected and the employer is not obligated to provide them work.

How are IR35 and Mutuality of Obligation Linked?

Employees paid through PAYE, Pay as You Earn have their tax and National Insurance Contribution amounts deducted from their wages before they are paid. This is an easy way for the government to keep track of taxes owed and paid.

With the rise in contractors and self-employed parties with zero-hour contracts who don’t get paid through PAYE, HMRC relies on accurate self assessment and reporting by those individuals to keep tabs on taxes owed.

As a result, IR5 was introduced in an effort to ensure that everyone is paying taxes as they should. With IR5, it is mandatory for people to prove that they are indeed self-employed or contracts and that they are not actual employees of a company.

Under IR35, this means that if an employer wants to hire someone off payroll and outside of a contract and IR35, mutuality of obligation wouldn’t apply. This means, an employer would not have the legal duty to provide work. Likewise, an employee would not have the legal duty to perform work.

It’s important to fully clarify and understand the employment status of any working relationship to ensure that taxes and payments are handled lawfully.

What is the Employment Status Test?

HMRC provides guide questions to test one’s employment status. These questions below help determine if a person should be classified as an employee or self-employed for tax purposes:

  • Is the person under the control or direction of the employer?
  • Is the person required to work at certain times or a consistent number of hours?
    • Is the person assigned with specific duties or tasks?
  • Does the person have freedom and flexibility to contract work from other parties?

The answers to the questions above establish the true legal relationship between employers and employees, thus allowing HMRC and all affected parties to decide whether a worker would be classified as a self-employed person or an employed individual for taxation purposes.

What does the Test Consider to Show Employment Status?

The government will consider someone as an employee under the following criteria:

  • The person must be registered for PAYE
  • The person has signed an employment contract with an individual or a company
  • The person works a set number of hours or regularly
  • The person is directly answerable to their supervisor or manager
  • The person is subject to disciplinary measures

This list is not exhaustive and additional factors can be considered by HMRC when determining if someone should be classed as an employee or not.

Why Would a Person Agree to Employment Outside IR35?

Some workers agree to engage in work even if outside of IR35. One reason is because they may not have a choice on the matter. This happens when a business would only hire people if they agree to take on work as a contractor or self-employed individual, and without the work they may face financial difficulty.

Sometimes, employers offer more payment to workers if they work outside IR35. Some workers prefer this as they get paid at a higher rate. They are also willing to lose employment benefits and rights because they would rather not get deductions for tax or other contributions.

While it seems to be advantageous at first, the risks and potential problems are higher. If someone works without a contract, he is not protected by employment laws. Hence, they are easily susceptible to unfair work treatment and their work hours are never secure. They could quickly lose their work arrangements with a business or employer.

Exceptions to IR35

IR5 exceptions apply to people who may be employees but do not meet all the employee criteria mentioned above.

Exceptions apply for contractors who perform work for multiple companies. There may be mutuality of obligation with specific work tasks, expectations and goals with these multiple companies. However, they are not an exclusive employee for any of the companies they work for. They could still classify as self-employed even though they have such contracts in place.

People hired for short-term jobs are also an exception. While mutuality of obligation exists, the work is temporary. Hence, the worker is not classified as an employee.

What are the Penalties for Breaching Employment Law?

IR5 ensures that all workers are paying taxes due to the government. At the same time, IR5 ensures that employees get protection from unfair work or employment practices.

There are consequences to hiring workers outside of IR35. If the government finds out, an employer will be subjected to penalties, interests, taxes and, possibly, legal fees.

Additional penalties apply for employees who violate provisions on the National Minimum Wage, Discrimination laws, health and safety laws and other employment laws. Furthermore,the company may be shut down and the board of directors can be prohibited from heading any companies in the future.

What can the Government do to Improve the Situation for Workers?

In order to better the working conditions of employees, the government must clarify IR35 rules. It will also help employers gain a better understanding of IR35 and clear any confusion which so many of them have surrounding compliance with the provisions of the law.

The government must also look into helping workers prove their employment status. A lot of employers break employment laws and yet get away with it. Employees must find it easier to challenge their employment classification if they are indeed employed by a company and not self-employed.

Mutuality of Obligation and Zero-Hour Contracts

The government must also look into zero-hour contracts and how they affect mutuality of obligation. Zero-hour contracts are being used by employers to withhold employee benefits and rights. Furthermore, workers don’t have job security because work hours are not guaranteed.

Zero-hour contracts also prevent workers from receiving sick pay, holiday pay and other employment benefits. That’s why the government needs to review zero-hour contracts if it is serious about the welfare of employees and if it is really intentional about protecting workers from unfair work practices. The government may put a ban on zero-hour contracts or introduce new laws and provisions that will prevent employers from exploiting workers.

Final Thoughts

In this article, we have tackled the scope of mutuality of obligation and discussed why it is an important aspect of UK business law. It determines the employment status of workers and lays out all the rights due to employees depending on their working relationship with an employer or client.

Mutuality of obligation ensures that employees experience fair treatment at work and that both employees and employers meet their tax obligations. If you need more clarification about IR35 as it applies to employees or employers, it is best to consult with a business lawyer or the official guidance on surrounding IR35 regulations.


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