The Rise of the Workers

David Palmer

Working status and workers’ rights was firmly a political issue in 2016.  In this blog, I will explain why 2017 could be the year of the worker. 

Inquiry into the world of work

I recently sat on the Employment Lawyers Association (ELA) working party, which drafted the response to the Department for Business, Energy and Industrial Strategy Committee’s inquiry regarding the future world of work.   The inquiry asked for responses to eight questions centred around issues related to the gig economy, including:

  • whether the concept of a ‘worker’ is sufficiently defined (the hot topic of 2016)
  • whether agency workers are treated fairly; and
  • the role of trade unions for ‘gig’ workers.

I refer to some parts of the ELA’s response to the inquiry below, but the opinions expressed in this blog are my own.

Gig in a bite

The Committee’s first question was:

Is the term ‘worker’ defined sufficiently clearly in law at present? If not, how should it be defined? What should be the status and rights of agency workers, casual workers, and the self-employed (including those working in the ‘gig economy’), for the purposes of tax, benefits and employment law?”

The gig economy is evolving the ways people work, organise, earn and operate.  Implicit in the Committee’s question is that the law is miles behind the modern world of work.

Clue: it is.

The Work-O-Spectrometer

Employment law typically defines three broad tiers of individuals providing work: employees, workers and self-employed.   The middle tier (workers) is not easily understood by the public… or lawyers!  But more of more concern, the three tiers belie the staggering variety of legal distinctions.  There are at least 15 different flavours of working status identified in the ELA response. 

There is little doubt that the middle tier is necessary.  The middle tier is where a great number of gig economy participants derive their basic rights regarding working time and national minimum wage.  Clearly a binary system of being either employed or self-employed does not reflect today’s (or tomorrow’s) world of work.

But there is little doubt the law needs to be simplified.  It must be easier to determine the working status of an individual.  This is particularly the case in the gig economy, where it is difficult to discern where the working arrangement fits with the law.

The ELA response suggests a solution that the law should provide a floor of rights for all persons engaging in work of any kind.  A simple solution to a complicated topic.

Following the crowd(sourcing)

Why are politicians interested in this issue?  Well, it is taking up a lot of column inches.  Be it high profile tribunal cases, or fast food delivery drivers seeking to unionise to protect their rights.  The gig economy and its ramifications are big news.  And there are likely to be more tribunal/court hearings in 2017 on this issue.

Then, of course, there’s Brexit.  The ‘worker’ concept comes from the EU.  The concept won’t necessarily be scrapped when Brexit occurs, but there may be more legislative freedom for our Parliament to reform employment rights – it depends on the separation deal between the UK and the EU.  One of the first matters discussed regarding post-Brexit laws was employment law.  So it is likely that Brexit will also keep this topic in circulation throughout 2017.

Takeaway slice

This issue was headline-grabbing news in 2016 and is likely to be as big an issue in 2017.

Individuals are cognisant of the issue of their worker status more so than ever.  Just last Friday, the BBC reported that a CitySprint bicycle courier won a tribunal case, proving she was a worker and not an “independent contractor”.  The BBC stated that this case “is the first of four legal challenges being taken against courier companies, which include Addison Lee, Excel and E-Courier.”

No matter what type of individual a business is about to hire/engage/employ/source/onboard (…the list goes on), the business needs to define its relationship properly at the outset.  This is the only sensible way to mitigate the risks of an individual claiming employee/worker status, when it was never intended that would be an employee/worker.  It is much harder to try to unwind the relationship late in the day.

Comments published on Employment Talk do not necessarily reflect the views of Allen & Overy.

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