Consider whether the consultant is entitled to leave rights (eg sick leave and holiday) and benefits (such as pension rights and sick pay) by virtue of the agreed contract. Where leave rights and benefit entitlements exist, this may indicate an employment relationship.
When considering leave and benefit entitlements it is important to remember that their presence or absence does not itself determine the employment status of the consultant. Instead, it is the employment status itself, in addition to the contract length, which determines whether the consultant in question is entitled to many of these rights.
It is important to note that not all employees have a contractual right to paid leave (eg where employment is a short-term arrangement).
Alternatively, some consultants may be entitled to paid leave under the Working Time Regulations (ie acquiring the right to paid leave under the Regulations if they have been continuously engaged for 13 calendar weeks). This, however, is not to be taken into account when determining status. Instead, any changes to the contract giving rights to paid leave should be considered, as this may indicate an employment relationship.
As with leave entitlements, benefits (especially pension scheme membership) may be absent from short-term employment as they may be inappropriate in such circumstances. The absence of such benefits therefore does not immediately indicate that an employment relationship doesn’t exist. However, the existence of benefit entitlements (eg sick or maternity pay) in long-term arrangements, can be indicative of an employment relationship.