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...
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
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, 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
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