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Introduction

Selwyn states that it is difficult to categorise working individuals because of the complexity of modern organisation, and despite the arrangements being convenient for those concerned, the lack of clear categories can hinder legal analysis.1 Identifying the employment status of an individual is extremely important because of the rights it determines, and the implications on areas such as national insurance, taxation and vicarious liability.2 In order to order critically consider the validity of Selwyn's statement, the nature of a contract of employment must be examined. Statute and case authority which governs employees, the self employed and workers will be considerably analysed in respect of Selwyn's statement. At first glance, an employee would seem to be an easy category to define. However, the fact that there are different types of relationship that connect to the employee complicates matters; Challinor v Taylor3 illustrates this. Primary legislation is not very helpful when attempting to determine the meaning of an employee. Section 230(1) of the Employment Rights Act4 (ERA) tells us that somebody who is an employee will have a contract of employment. Section 230(2)5 states that 'contract of employment' means a contract of service or apprenticeship whether express or limited, and (if it is express) whether oral or in writing. It is evident that the legislation does not help when identifying an employee, therefore the case law is very important to see how the courts are interpreting section 230,6 and how they are attempting to categorise working individuals. ...read more.

Middle

The courts have the task of categorising working individuals into suitable groups, however due to the fast changing nature of employment, this task is colossal. Case law indicates that every case needs to be looked at individually in order to categorise someone as an employee. Distinguishing between the employed and self-employed is evidently a very difficult task, Deakin states: "The creation of a strict legal dichotomy between the employed and self-employed may have been a good legislative policy; but it is highly questionable whether this was ever really coherent as a distinction between two types of contract."26 The courts should forget about trying to find a one-for-all test for distinguishing employees, and realise that every single case needs to be looked at individually. If a working individual is not an employee, they could be within the category of workers. Section 230(3)27 of the ERA and section 29628 of the Trade Union and Labour Relations (Consolidation) Act define a worker. The definition makes it clear that an individual would be a self employed contractor if they are a client or customer to a professional person or business man; they would not be a worker.29 Johnson highlights the difficulty of defining a worker through legislation: "The introduction of legislation protecting those who have 'worker' status has led to the inevitable confusion and dispute over who exactly will be covered by this definition."30 The workers are in business for themselves, but they are sill undertaking a service for somebody else personally. ...read more.

Conclusion

Identifying an agency workers employment status is very difficult, it was therefore decided something had to be done. Agency worker numbers have increased phenomenally in the United Kingdom and Europe. The European Union issued a directive to combat the problematic area: The Agency Workers Regulations 2010. This will come into effect in 2011, and give agency workers the rights they deserve. Selwyn is absolutely correct when he argues that working individuals are difficult to rationalise into well-defined categories. Legislation is not helpful when identifying employment status, therefore the case law is our main guidance. Since the nineteenth century, the courts have introduced tests to work out if someone is an employee; this is outdated and no longer justified.59 The ever expanding area of employment has proved to be a major difficulty when identifying employment status. The worker category is particularly broad, and includes the problematic casual and agency workers. I agree with Johnson, that workers are a hybrid class;60 it is a significant reason why working individuals are so difficult to categorise. Careful examination of the case law sheds light on one common theme; every case concerning employment status needs to be individually assessed using clear logic and common sense. The speed in which employment changes, the overlap between workers and employees, and the different employment relationships, are why it is so difficult to have well-defined categories for workers. Employment will continue to change, and with it the task of categorising working individuals will become even more considerable. ...read more.

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