Andrew Secker, Principal Associate for Mills & Reeve LLP
Recent years have seen new forms of employment develop, like crowd employment (online platforms matching employers with specific needs to the workers with the relevant skills) and collaborative employment (where groups of workers join together to bid for bigger projects).
ICT based mobile work – where a worker can, using tech devices, complete their work anywhere at any time – is now common in Nordic countries and the IT sector.
So, how have the courts adapted to these new forms of employment? Rather than adopting a new approach, it appears it’s a case of applying the same old legal tests in a new context.
Some recent examples
The employment status of an individual, and whether he/she is an employee, worker or self-employed, determines the extent of employment protection rights a person has. Understandably, the boundaries between these categories has been heavily litigated.
The most recent dispute to reach the Court of Appeal involved two court interpreters who argued that they were “workers” in order to bring race discrimination claims against the Ministry of Justice. The Court of Appeal upheld the decision that the interpreters were self-employed providers of services, not workers. The key factors were that:
- The interpreters were engaged on a casual basis, with no obligation to accept work if offered;
- The services provided were of a professional nature; and
- The interpreters had previously arranged their tax affairs (without protest) on the basis that they were self-employed.
The latest dispute we are aware of, which may turn into a test case for zero-hours contracts in other sectors, is a claim brought by cycle couriers in London against four different employers. The couriers want to establish worker status so that they can claim holiday pay and the national minimum wage. The respondents are arguing that they are self-employed.
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