Commentary on employment status

Desire to establish entitlement to employment rights

The “Gig Economy” remains a topical issue with more and more claims being brought by individuals seeking to argue that they are not a self-employed contractor but are instead either an employee or a ‘worker’.

What all these employment status claims have in common is that they are motivated by a desire to establish entitlement to employment rights which are only enjoyed by either employees or workers.

For example, only employees have the rights not to be unfairly dismissed and to receive a redundancy payment; whereas workers enjoy certain minimum rights, such as restrictions on their working time, and to receive paid holidays and the national minimum wage.

It is not uncommon for individuals to work for many years before deciding to challenge their employment status when they realise that doing so will grant them access to particular employment rights and a possible financial windfall.

If anything, these endless cases demonstrate a need for our employment laws to be updated.

Part of the problem is that the current law which defines who is an ‘employee’ is not found in statute, but has developed through complex case law over time.

And we all know how confusing and contradictory case law can be.

We are left with difficult to interpret concepts such as ‘mutuality of obligation’, ‘control’ and ‘personal service’.

These tests require a degree of knowledge and gut instinct but are in no way clear as there is no “one size fits all” methodology.

The difficulties with the current tests for employment status were acknowledged in the July 2017 Taylor Review.

In response, the government has pledged to consider the introduction of statutory tests for employee, worker and self-employed status, and whether any new statutory tests could be simplified and made more precise (for example, by adding weight to certain factors or using a points-based system).

Watch this space!

It will be a welcome move…