There is much to mull over in the Taylor ‘Good Work’ Review. It proposes some significant changes to employment law that deserve serious consideration. I set out a whole list of them here. But a lot of attention is being paid to a change that, in itself, will have only a cosmetic effect – relabelling workers as ‘dependent contractors’
Here is way the Review puts it on page 35:
Government should retain the current three-tier approach to employment status as it remains relevant in the modern labour market, but rename as ‘dependent contractors’ the category of people who are eligible for worker rights but who are not employees.
There are also proposals for redefining the scope of employees and workers – but I’ll deal with those future posts. Here I just want to concentrate on their change of name and why I think its a bad idea.
First of all let’s be clear that this is not a ‘new’ status. We are not talking about a new category of person previously excluded from employment law who will now gain some new set of rights. This is just about what to call that group of people who are not employed under a contract of employment but who nevertheless qualify for rights such as the National Minimum Wage, or rest breaks and annual leave under the Working Time Regulations.
I don’t see anything wrong with the word ‘worker’. I certainly don’t see that ‘dependent contractor’ is any better. But my objection is more practical than that. If this change is made, what will that do to the drafting of employment law?
Here’s the problem. Look at the definition of a worker in the Working Time Regulations.
“worker” means an individual who has entered into or works under (or, where the employment has ceased, worked under)—
(a) a contract of employment; or(b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual;
and any reference to a worker’s contract shall be construed accordingly
You can see that the term worker covers both employees and people employed under ‘any other contract’ under which they are personally obliged to perform work. The word ‘worker’ does not just apply to those other contracts, it applies to employees too. There is actually no name for the people in the ‘other’ category. They tend to be referred to in the case law as ‘limb (b) workers’.
So here is where the Taylor report goes wrong. it says that it wants to rename those ‘limb b workers’ as dependent contractors, but the legislation doesn’t give them a name at all. Whenever the word ‘worker’ is used, it refers to both employees and this wider (unnamed) category. I’ve picked the example of the Working Time Regulations but the same issue arises under the Employment Rights Act 1996, the National Minimum Wage Act 1998, the Trade Union and Labour Relations (Consolidation) Act 1992 and others.
To introduce the concept of ‘dependent contractor’ – which will not, the Report says, include employees – you would need to have two separate definitions: e.g.
’employee’ means an individual who has entered into or works under a contract of employment
‘dependent contractor’ means an individual who works under a contract…whereby the individual undertakes to do or perform work personally…
Then – whenever a right is set out, you would need to amend what the law says about who qualifies for it. Look at Regulation 11 of the Working Time Regulations:
Weekly rest period
11.—(1) Subject to paragraph (2), an adult worker is entitled to an uninterrupted rest period of not less than 24 hours in each seven-day period…
If we drop the term worker and replace it with ‘dependent contractor’ Regulation 11 would have to look like this
Weekly rest period
11.—(1) Subject to paragraph (2), an adult employee or dependent contractor is entitled to an uninterrupted rest period of not less than 24 hours in each seven-day period…
Basically, every time the current legislation refers to a worker, we would have to change the wording to say ‘an employee or a dependent contractor’. Some poor soul in the Department for Business will have to go through the whole statute book looking at each time the word worker is used and decide whether it needs to be replaced. Perhaps you could come up with some sort of ‘find and replace’ amendment – but why would you bother? What on earth would be the point?
Fundamentally, why would the world be a better place if the definition of a trade union (section 1 of the 1992 Act) was an organisation:
(a) which consists wholly or mainly of employees and dependent contractors of one or more descriptions and whose principal purposes include the regulation of relations between employees and dependent contractors of that description or those descriptions and employers …
I think this is a rather silly idea that has already had far to much attention.
Let’s never speak of it again.