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First Class Employment Law Exam with Feedback
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  • Law LLB
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  • Law LLB

First Class Employment Law Exam with two essays - one on employment status and the other on gender quality in uk employment law looking at work/life legislation, working time and flexible working - and also a problem question on unfair dismissal. The grades and feedback for each question are at the...

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Document information

  • December 19, 2023
  • 14
  • 2022/2023
  • Exam (elaborations)
  • Questions & answers

Subjects

  • first class
  • employment law
  • llb
  • second year law
  • essays
  • problem questions
  • employment status
  • work life legislation
  • working time
  • flexible working
  • unfair dimissal
  • gender equality
  • law

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  • Law LLB
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QUESTION 1




ANSWER


Whilst this essay agrees with the Taylor Review’s proposal that the tests for employment status should be

codified into statutes and guidance, it also contends that exclusive legislative implementation is impractical. A

judicial application of a purposive approach is also needed to resolve disputes of employment status.

Subsequently, this essay proposes a comprehensive solution, which would guarantee a development of

employment law in reflection of the reality of modern-day casual work, striking a balance between legislative

clarity and the flexibility provided by case law.




This essay will first define the distinction between employees and dependent contractors, before

contextualising the changing modern labour market to illustrate why traditional tests of employment status may

no longer be adequate. Then this essay will determine whether tests for employment status should be codified

and examine the Taylor review’s proposed changes to the worker model. It will subsequently determine

whether legislative reform is the best approach to clearly establish the foundations of fair and decent work in

today’s labour market, or whether it should be left to judicial interpretation.




Taylor Review




The Taylor Review (2017) proposes to develop legislation and guidance to clearly establish definitive tests for

employment status, outlining the principles in legislation to enhance worker protections and address the

complexities of modern work arrangements. Its underlying belief is that “all work in the UK economy should be

Page 1 of 14

, fair and decent with realistic scope for development and fulfilment”. However, this proposal has been heavily

criticised for failing to consider the practical reality and issues of establishing employment status (Bales et al.,

2018).




Employment status and the changing labour market




Although S230(1) Employment Rights Act 1996 purports to clearly define an employee as an “individual who

has entered into or works under… a contract of employment”, it lacks significant certainty (O'Higgins, 1967).

This is because the distinguishing factor between employees or dependent contractors, provided by S230(2),

is that employees work under a ‘contract of service’ and contractors under ‘contracts for services’. To

overcome this uncertainty, several tests for employment status have been developed by the court, though, an

increased use of the modern statutes for ‘workers’ has faced criticism regarding whether current legislation is

relevant to the changing labour market and is adequate for determining employment status (Davies, 2009).




Historical legislation and its employee/self-employed distinction has been complicated by an increased

prominence in part-time, fixed-term and agency workers in response to financial crises, with the greatest

challenges being posed by zero-hour contracts and the gig economy (Smith, 2021). Whilst these new forms of

work offer greater flexibility and are a “booming and plural way of earning a living” (Resolution Foundation,

2016), workers are afforded less rights than employees and often find themselves at risk of vulnerable

employment resulting from an imbalance of power in the employer-worker relationship (TUC Commission,

2008).




Should employment status tests be codified in legislation?




The common law test for employment status derives from Ready Mixed Concrete, where MacKenna J

outlined the requirements for control, mutuality of obligation and personal service, which are considered in

Page 2 of 14

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