What about the workers? And who is a worker?

February 17, 2017


What about the workers? And who is a worker?

When HH Judge Charles Harris QC retired from his position as senior judge at the Oxford Combined Courts in February of this year, he took the opportunity of lamenting the vast proliferation of laws introduced by successive governments such that it was impossible for those practising in the law, let alone the public at large, to understand the rules that controlled their daily lives.  It was not just the number of laws; it was also the complexity.

Just recently there have been several court cases concerning one employment law issue.  The cases have arisen because of the different rights to which different classes of worker are entitled.  The matter is made more complex because it is tempting for an individual to argue that they fall into one class for so long as it suits them and then to argue the contrary when they see a benefit in belonging to another class.  So, to be self-employed produces a better tax regime; until you are sacked.  At that stage you argue that you have been an employee all along and the self-employed stuff was just a sham.

The rule is that, no matter how you describe your working relationship, it is the interpretation of the law which determines your category.  And what may have satisfied HMRC may not satisfy a judge in the Employment Tribunal.

Decisions affecting Uber drivers and Pimlico plumbers have hit the headlines recently; but those cases represent a tiny proportion of the disputes that soak up millions of pounds of costs.

Typically, “employees” have the greatest entitlement to employment rights, followed by “workers” with the self-employed bringing up the rear of the field.

The Department for Business, Energy and Industrial Strategy has recently published a report (actually prepared in 2015) which includes this statement:

"It has become increasingly clear that determining whether you are an ‘employee’, a ‘worker’ or genuinely self-employed is not a simple calculation for some, requiring familiarity with complex legislation and decades of case law."

Meanwhile, on 1 October 2016 the Prime Minister commissioned a review: “The Independent Review of Employment Practices in the Modern Economy” led by Matthew Taylor.  The remit of the review is wide but includes consideration of whether the existing models of working are suitable for a modern economy and whether they serve to protect the rights of working people.

In February of this year, a group of barristers at Cloisters Chambers submitted evidence to the Review and has coupled that with a published summary entitled, tellingly, “Certainty for all: a plea to the Taylor Review”.  The central tenet of that part of the summary concerned with the employment relationship can be summarized by the following extract: “Those who provide personal service under a contract should be workers, whatever legal mechanism is used to provide that service.”

So it shouldn’t matter whether a person is categorized as an employee, an agency worker, a zero hours or other casual worker, or indeed someone who works through a personal service company.  All should be treated as workers and entitled to the same level of protection.

There would then need to be only one other category, namely that of the genuinely self-employed.

The Cloisters paper concludes with this:

“It is often said that lawyers thrive on uncertainty, and our proposals perhaps run counter to our own financial interests. But uncertainty benefits no one in the wider economy, particularly given the challenges the UK faces in the future. What is needed is a clear, level playing field for all, with protection for the most vulnerable players in our economy, and clear statutory provisions that prevent the development of ever more elaborate means of circumventing both worker rights and tax.”

This surely has to be right.  My tired old brain would hugely welcome the relief from quite unnecessary complexity.

posted by Julian Freeland | February 17 2017