The Future World of Work: Is it time to overhaul Employment status?

The gig economy, zero hour contracts, the scope of self-employment. Employment status, or more precisely, the varying degree of employment rights that are conveyed by employment status, has possibly never been as apparent in the public consciousness as now.

For so long the exclusive plaything of contract lawyers grappling over the intricacies of mutuality of obligation or the extent of control, now the mention of taxi drivers rights will prick the ears of most casual bystanders.

The world of work has changed. The 9-5, Monday to Friday employment arrangement now finds itself amongst a myriad of work settlements. There are many factors impacting on this, chief amongst them are technological developments that have led to companies offering work via on-line platforms, opportunists spotting gaps in contract law to engage individuals in a manner that limits their financial and legal liability, and also an increase in individuals in the labour market genuinely seeking ultimate flexibility in their working hours.

All of this is then brought into sharper relief when general election manifestos are launched expressing polar opposite views on the extent of employment rights and with a new employment law world on the horizon post-Brexit.

The question to be tackled in this article though is whether the current legal landscape on employment status is fit for purpose, and if not, where the room for improvement can be found.

To re-cap the current position, at opposing ends of the work spectrum are employment status and self-employed status. An employee works under a contract to perform work personally. The tests of employment status are well established and include:

  • personal service and mutuality of obligation: an on-going obligation on the employer to offer work and an obligation on the employee to discharge work offered; and
  • control: the employer broadly directs how, when and where the work is undertaken.

A self-employed contractor by contrast is in business on their own account providing services to customers or clients, investing in their business, generally providing their own equipment, marketing their business and engaging in financial risk. Mutuality of obligation, personal service and control are absent.

The third status classification is the intermediate status of “worker”. A worker shares the obligation of personal service with an employee but frequently mutuality of obligation is absent. For example, in the case of casual workers, there is no obligation on the company to provide regular work and the worker is not obliged to accept work offered.

The current status quo without doubt creates uncertainty. Establishing the correct employment status, and therefore what employment rights a specific individual has, is often left to be decided retrospectively by the courts. This is an unsatisfactory position, as judicial decisions on this matter tend to be very fact-specific, making it difficult for parties to a working relationship to apply those decisions to different elements of their own workforce.

This will not change, as case law under the current regime must take a multi-factorial approach when determining employment status considering matters such as control, risk, right of substitution, integration into the business and so on. When this consideration is of a fact specific nature, few judgments tend to actually create any great clarity across the employment spectrum, leaving the argument to persist.

The greatest current concern is that the regime, as it stands, leaves room for abuse; the exploitation of workers, particularly within vulnerable sections of society. Reports of individuals’ unwillingly working regular, long hours without access to the guarantees of the living wage, holiday pay, statutory sick pay and other minimum protections suggest a real social issue. Whilst flexibility is undoubtedly a valuable component of the labour market, the law seems to require a more reliable way of resolving the uncertainty faced by the reluctant self-employed, unsure if the work offer will continue day to day.

The answer is certainly not simple, and will require in-depth consultation, particularly to ensure any changes fit a fast-evolving, technologically advanced labour market.

Some ideas worthy of discussion in the writers view are a review of the definitions of each employment status category. Self-employment is currently undefined and the definition of worker status leaves significant grey areas. Both concepts are capable of being strengthened and a conjoined review of both could lead to far more certainty, and therefore far easier enforcement routes against exploitative employers.

A review of rights attached to each category of employment status would be useful, particularly in a post-Brexit world. Uncertainty will exist in any event following our exit from the EU on issues such as holiday pay, for example, as a result of EU enforced rules on the taking of holiday, its relationship with sickness absence and what rate of pay should be applied. An opportune time therefore to review these matters in the absence of EU principles, alongside integration with employment status.

There certainly seems to be scope for clearer guidance, from government, on the issue of employment status. Clarity for businesses at all levels on the major factors determining status can only help, whilst interesting ideas have been observed from pre-existing reviews on the topic.  Intervention in the recruitment process, ensuring employers clearly identify the employment status offered, coupled with government guidance directed at workers on the rights available to them at each level, would offer clear choice to candidates and could also precipitate greater competition in the labour market (again noting the potential Brexit impact on the availability of labour), and therefore an increase in better quality employment.

The current feeling is that the law in this area is not evolving with the changing labour market, and is instead constantly playing catch up via the courts. As a result this is creating social issues within the shades of grey between each category of employment status. Public attention towards this has ensured a place on the agenda at government level and therefore changes, in some form, appear likely. It is unclear how radical those changes will be, but the forthcoming General Election will undoubtedly shape the extent of the review.