The dividing line between workers in this strict legal sense and self-employed individuals can be hard to draw, and there have been many legal disputes about this in recent years. Because of these legal uncertainties the Government has been urged to legislate to make the law more certain. However, in a recent response to consultation on this issue it has concluded that now is not the right time to start tinkering with the law.
There are in fact two kinds of workers: those that have the status of employees (and who benefit from additional rights such as protection from unfair dismissal) and those who are engaged under a contact to “perform work personally” but who are not in business on their own account. It is this second category of worker that can be hardest to distinguish from the genuinely self-employed.
The best-known example of a case grappling with this issue is the well-known Uber litigation, which was finally resolved by a ruling from the Supreme Court last year. In confirming the employment tribunal’s ruling that a group of Uber drivers should have been classified as workers, it stressed the courts had the power under employment legislation to ignore provisions in legal agreements which were designed nullify workers’ rights.
Cases since Uber have in the main been significantly more generous in giving workers the benefit of the doubt than some earlier rulings. The most recent example of this trend comes from a case involving the Nursing and Midwifery Council. A member of its fitness to practice committee has succeeded in establishing worker status, despite what many would regard as relatively tenuous links with the council. The Supreme Court has recently refused the council permission to appeal, meaning that in its view this is not a borderline case.
We are therefore in a situation where it is probably easier than ever to secure worker status, and businesses need be alive to the risk of miscategorising individuals whom they engage to work for them.